Alerts - October 09, 2008

Common Law Reconsideration Applications: In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held that there are only two standards of review at common law: correctness and reasonableness. This has raised a question as to whether the standard of patent unreasonableness continues to apply under the Administrative Tribunals Act, in relation to WCAT findings of fact or law.

Some court decisions have found that the three standards in the Administrative Tribunals Act, including patent unreasonableness, continue to apply in British Columbia. Others have held that “reasonableness” now applies to findings of fact and law.

Due to the current uncertainty regarding the standard of review in BC, WCAT panels may consider a reconsideration application regarding WCAT findings of fact or law from both perspectives (the standards of patent unreasonableness, and reasonableness), to determine whether it affects their determination.

It is open to parties to provide submissions as to whether the patent unreasonableness, or reasonableness, standard of review applies, and how the reconsideration application should be determined under the applicable standard. WCAT will generally proceed to consider an application for reconsideration, whether or not the parties provide submissions on this issue.

Follow this link for the revised Applications for Reconsideration - Information Sheet. When this issue is finally settled by the courts, this information sheet will be updated and a new message will be posted here.