Alerts February 17, 2009

Common Law Reconsideration Applications:  In Dunsmuir v. New Brunswick, 2008 SCC 9 (link the case name to (Dunsmuir), the Supreme Court of Canada held that there are only two standards of review at common law:  correctness and reasonableness.  This raised a question as to whether the standard of patent unreasonableness continues to apply under the Administrative Tribunals Act (ATA), in relation to WCAT findings of fact or law.  (This did not affect the consideration of issues involving the adequacy of reasons or procedural fairness and natural justice).

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

In Tallarico v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 49, the BCSC found that it is now settled law (subject to any different decision by a higher court) that the three standards of review set out in section 58 of the ATA continue to apply in British Columbia despite Dunsmuir.  In Asquini v. British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 62, the BCSC found that the standards of review in section 58 of the ATA are constitutionally valid and are not affected by Dunsmuir. 

It remains open to parties to provide submissions regarding the applicable standard of review, and how the reconsideration application should be determined under the applicable standard. 

Follow this link for the revised Applications for Reconsideration – Information Sheet.  This information sheet will be updated and a message will be posted here, should a future court decision provide additional guidance on this issue.