Reopening Decided Cases: a “Jurisdictional” ProblemFraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 (CanLII)
Felix Frankfurter once described jurisdiction as “a verbal coat of too many colours”. Exhibit #4579009 is Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, which features three sets of reasons on tribunals’ authority to reopen closed decisions (though the concurring reasons of Goepel J.A. contain mostly a brief treatment of the merits of the case).
The contested decision here was the award of workers’ compensation benefits to a worker who had suffered breast cancer. Causation was at issue. After unfavourable decisions at lower levels of the workers’ compensation system, the worker won before the Tribunal. It found that there was a sufficient causal link. Subsequently, it also dismissed a request from the employer for a reconsideration of its decision.
Two issues arose about the scope of the Tribunal’s reconsideration power. The first is when a tribunal may reconsider a decision that has been duly reached. The second is how a reviewing court should perform its role where there has been an original decision and a reconsideration.
Traditionally, the functus officio rule applies to administrative tribunals. Quite properly: if an individual has been granted or denied a benefit, the decision should be final and binding; its substance should not be reopened, for otherwise uncertainty would arise. Nonetheless, the principle need not always be applied in the administrative field with the same rigour it attracts in judicial proceedings: as ever, administrative decision-makers are not bound to apply legal concepts in precisely the same way as courts do. All this was made clear by the Supreme Court of Canada in the leading case of Chandler v. Alberta Association of Architects,  2 S.C.R. 848.
At issue in Fraser was the wide scope the Tribunal has given to its power to reconsider its own decisions. Section 253.1 of its home statute provides for several unobjectionable grounds for reconsideration (inadvertent errors and typos, for example) but also – ominously – to “cure a jurisdictional defect”. There is much discussion by the majority and minority of administrative-law metaphysics. Does “jurisdictional” here mean the same thing it means in judicial review cases? The majority, in reasons by Chiasson J.A. said it does (see e.g. paras. 150, 169); the minority, in reasons by Newbury J.A. seemed to treat it as co-extensive with a court’s authority to judicially review a decision (see para. 63). This seems like a category error to me. What matters here is the meaning of this power in the context of the Tribunal’s statutory scheme, not the meaning of “jurisdiction” (if any) in judicial review proceedings (a point also made by James Sprague on Twitter).
The Tribunal had taken the view that it can, on reconsideration, correct a patently unreasonable decision (a standard of review that survives in British Columbia). To my mind, this is misguided. A power of reconsideration ought to be limited, for the good reasons given by the Supreme Court in Chandler, but review for patent unreasonableness essentially amounts to a reconsideration of the essence of a decision. Yet “as a general rule, a tribunal or other decision maker does not have power to reconsider simply because it later concludes that it reached a wrong decision” (at para. 155, quoting legislative history). It must be therefore be construed more narrowly, an issue to be discussed further in a subsequent post. The Tribunal’s approach also creates an analytical problem. Administrative proceedings would never come to an end as reconsideration could be piled on reconsideration.
On the second issue, the general rule is that only a decision-maker’s final decision can be assessed by a reviewing court. But there are some situations in which courts will look also to the original decision, for fear that otherwise they could not conduct a meaningful judicial review. Newbury J.A. was correct in dissent to note that this is typically a practical problem, best addressed by judicial discretion (at para. 64). But the Tribunal’s policy of – in essence – using its “jurisdictional defect” authority to perform a judicial review of its original decision cannot be minimized as a mere practical problem. Judicial review is a core function of s. 96 courts, not of administrative decision-makers.
As I have argued, performing an internal judicial review is not only constitutionally dubious per se but also makes it more difficult for reviewing courts to do their job. Newbury J.A.’s pragmatic response that a reviewing court could look at the original and final decisions is unconvincing, for it creates a needless duplication of effort and risks obfuscating important issues on judicial review (by suggesting that the reviewing court should review the ‘internal review’ conducted by the Tribunal on reconsideration, creating a “double deference” problem). I appreciate Newbury J.A.’s point (at para. 66) that access to justice and efficiency are important concerns: if all this can be done ‘in-house’, isn’t that better for individuals? Perhaps, but judicial review is an ever-present feature on the Canadian administrative justice landscape. Duplicating it in an administrative forum will simply lead to complications. At some point, the administrative process must come to an end.
In any event, Fraser is evidence that fixation on “jurisdiction” and — in particular — judicial conceptions of “jurisdiction” is a bad idea. On the merits, the employee lost, the majority taking the view that there was no evidence at all of a causal connection between the workplace contaminants and the cancer, thereby failing even the generous test of causation applied in the workers’ compensation setting (see the summary at paras. 215-216).