Royal Commission on Workers' Compensation in BC

 

Appeals

Staff Present: TR, GG, OE, GS, SN, PL

Notetaker: Steven Noble

Date: Wednesday, April 15, 1998

 

 

  1. The issues that come up in workers' compensation appeals are often extremely important. Whether an injury arose in the course of employment or whether a disease was caused by the work can be issues fundamental to the well being of workers and their families. Similarly, entitlement to a pension or its amount can be of vital importance to workers. The rights and responsibilities that arise from the workers' compensation legislation are of such significance that they need full and complete protection through more than one level of appeal to ensure a just and fair result.
  2. There is a role for an initial level of appeal that hears large numbers of appeals in a relatively informal manner and then other levels made decision in a different way. The emphasis at this first level is on getting through a large volume of appeals rather than crafting decision so they will be immune from judicial review. The approach should be more of an inquiry than an adversarial proceeding. This first level requires the jurisdiction to make findings of fact, law, and policy as well as the authority to consider expert evidence in areas such as medicine and other scientific areas. Some physical separation from the Board is desirable although being separate from the Board does not mean to workers that an organization is independent of the Board. And we heard a bit of this with discussion with Mr. O'Brien Mr. Chairman, and in our experience people phone up and say they have a decision from the Board and many times it's a decision from the Review Board. Or from the Appeal Division and one of the first things that an advocate has to do is kind of pin that down to find out what's going on and also track - to note the different time periods that are issue. So while we value the independence of the Review Board it's not always apparent to the people who use it.
  3. Having more than one level of appeal provides for a process of refinement of issues and fact. Much like the court system or other appeal systems there is value in having a first appeal decision which (apart from making a decision that is acceptable to the parties which may not be appealed further) focuses issues and facts so that the work of second and third level appeals is more efficient. This applies to all issues in the system but for very complicated cases there is refinement that permits subsequent levels of appeal and perhaps the courts to deal with the large and important issues.
  4. When there is more than one level of appeal the perception of the parties is that they will be receiving an independent second appeal of their case. An internal reconsideration does not provide the clear perception that a second level of appeal is independent.
  1. RESPONSE TO THE PROPOSAL FOR A ONE LEVEL APPEAL SYSTEM
  1. There would be no savings in cost by moving to this system (O'Brien, 70-71).
  2. One level of appeal is held out as a way of getting decisions faster (O'Brien 71). If this is the objective, and we agree it is an important one, then it can be accomplished by a statutory requirement to get decisions out within 90 days. The Appeal Division has demonstrated the value of that kind of provision.
  3. The proposal is not really a one level appeal but 4 or 5 levels in one: mediation, adjudication, health care advisory board, reconsideration and a right in the Board to make a referral to court. It is not clear why an appeal that went through all of these steps would take less time than currently.
  4. With regards to the proposal for a Health Advisory Panel ("HAP") we note that either party may requires that a panel make a referral to a HAP. Whether the panel holds a hearing or receives written submissions it will take time to make this determination. If the panel refuses the request this decision would not be appealable.
  5. If a HAP makes a decision on a medical issue the decision will be binding on everyone, including the panel. Since there could be no appeal except on the basis of an error of law there would be no further appeal of medical issues.
  6. We believe that opening appeals to the public will increase the length and cost of appeals as well as introduce new issues of confidentiality. As you know Mr. Chairman the confidentiality of files is a big concern to everybody in the system and we believe that if you open appeals to the public then some very new considerations and some very new issues of confidentiality will arise.
  7. The proposal does not include any policy role for the Appeal Tribunal. One of the duties of the Chief Appeals Commissioner is to sit as an ex officio member of governance. The following was the reasoning for this,

By that device, the Board of Governors will be able to ensure that its policies are clearly understood by the system's most senior adjudicator. And in that capacity, the Chief Appeals Commissioner will be a useful resource as to the actual impact of those policies in specific cases ("Munroe Committee" Report, 8 WCR 231 at 238).

We believe some linkage between the appeal system and the body that creates Board policy is desirable. The proposal for a one level of appeal does not provide for this linkage. And you will recall Mr. Chairman in our other previous submission we believe that the overall - there should be a greater linkage in terms of determining the quality of Board decisions - there should be a greater linkage between the appeal system and the Board and a one level appeal system - an external one level appeal system would in our view would exasperate that problem.

Q: When you say there should be a policy role for the appeal tribunal would that be for all levels of the various appeal tribunals - right now there's two of course - there's also an external review panel which is an appeal tribunal of sorts - so would they all have a policy role or how do you see that working?

A: Well, the - first of all the - I don't think it was envisioned that they have a policy role in the sense of determining policy. In fact the direction to the Appeal Division is the opposite - that they don't determine policy, they interpret the statute.

Q: Okay, if you are going to deal with that later, that's fine; I'm just picking up on it?

A: No, no; I just want to be clear about what we mean by policy role.

Q: Policy role.

A: The current system - Review Board, Appeal Division, Medical Review Panel seems to make sense from that point of view - that is bringing some policy linkage between the Board and the appeal system that is assuming they are - well - the Munroe Committee used the word "senior level of appeal" and I suppose that's true, although usually the Medical Review Panel is usually the last one. And it is final and binding but it makes sense to have that - that - the linkage between the Board and the policy function of the Board at that level because the Appeal Division in general here is the more complicated cases on policy levels - on policy issues. I don't think that it's necessary that every level of the appeal system have a policy linkage in a formal sense such as an ex officio presence on the Board, but that's not to say that there shouldn't be some informal relationship between - in the current structure the Review Board and the Board and I - Mr. O'Brien and I talked about that and you heard from us previously that we think that's one of the ways to - to assess the quality of Board decisions is to get some input from the Review Board.

Q: Could you not accomplish that linkage by continuing to have the Appeal Commissioner sit on the Board of Governors much as he or she does now - and report in to the Board of Governors?

A: I suppose you could - as I understand the proposal it's external and it's intended on being external in the sense of being independent. So you - you - it would counter to that idea of the independence of the appeal tribunal that is that - that it is physically separate but it's Chair sits on the governance board of the Board in an ex-officio capacity. As I understand the concept it is supposed to be physically separate and I'm assuming that - that the concept was by physically separate and - it meant it wouldn't have a structural relationship to the Board and in the same way that the Appeal Division has now.

Q: However most of if not all of the Panel of Administrators are now external to the system and in most organizations - private and public - most Boards of Directors - I would say 90% of them are external to the organization precisely for that - for some of the reasons you have spoken to - to have that external review and that second objective approach on issues. So it could conceivably work.

A: I'm not saying it's impossible; I'm saying it runs counter to the - as I perceive the independence.

Q: And there is one more issue; you do mention about having more than one level of appeal provides for a process of refinement for issues of fact which I think is correct, however, this proposal by Mr. O'Brien, although it is just a proposal - but to speak to that one at this point you note that he also suggests several levels of appeal within the sort of the main body that in fact one can segregate it down to four or five different phases or steps within the appeal process; wouldn't that accomplish the same thing - wouldn't it allow for the same refinement of issues and focus to the appeal process?

A: I think partly that's correct. But you don't get the - when you have different levels of appeal you have a - a - some finality to - to each stage. So when you - it's - you have a decision of the Review Board and they hear evidence and they deliberate on it and make a decision. Some of the evidence they hear doesn't show up in their decision. Some of the arguments don't even show up in their decision. And that's just how the system works. So if that decision appealed then it's - it's a - there's already a - I use the term clearinghouse later on - but there's already a kind of refinement of the issues simply by the fact of making a decision. I don't think you would have that by the internal levels to the same extent. I'm not saying you wouldn't have it at all - but and certainly the first part - the inquiry portion of it which I take to be case management as well as mediation - there is some refinement of the issues there but the point is that you with more than one level of appeal of decisions made - there's findings of fact; there's findings of law and policy and so on. And then that decision becomes the record that's appealed further on and it's that process - the finality of decision that's - that really really defines the issues later on.

Q: And I think that what strikes me is the definition - it's not just the definition but the consistency and if we are striving for fairness and equity in the system - would it not be better to have a process contained within one body so that the whole system can be improved in a consistent manner?

A: I suppose having one level of appeal would hold out the promise, or even the appearance of consistency because it's all within itself. I'm not sure that that's true in practical - as a practical matter - it seems to me that if you have - equally plausible is that you have one level of appeal that's independent in - which is very independent of the Board and you have even more than now - the independence becomes a very different way of doing things. So I'm not saying it's black and white - I'm saying there's a balance there between the independence - there has to be some linkage between the appeal system and the Board. And the system we have currently isn't perfect but it's - it's better than the proposal for the one level of appeal because we'd be concerned about the physical separation of the Board and the appeal system and you really have two worlds going on. And I suppose if we are concerned about internal consistency the Review Board struggles with that mightily itself right now. And it always has and I'm guessing it always will; that's just something that tribunals struggle with and courts too. And one of the things about the Review Board is that - they - they can have - because they are the first level of appeal - in a two level appeal system - they can have decisions that are more inconsistent among themselves than if they were a one level appeal and I'll come to that in a minute because the Appeal Division in a sense is there to fix the inconsistencies within the Review Board and you wouldn't have that with a one level of appeal.

Q: In your view that does not warrant - one does not outweigh any other concerns you might have - that it is important to have the consistency and policy making in a consistent format - so that the whole system can continue to revitalize and rejuvenate themselves in terms of how it addresses the whole issue - all the issues and claims before it. You don't think that - that may be an important enough issue to outweigh some other considerations or concerns you might have?

A: No, and in fact I think it - it - I think the point about the appeal system rejuvenating things is - I think that that's a good point - I would suggest though that you would have more rejuvenation - if that's the term we're using - with more than one level of appeal. That is, between themselves - there can be a robust debate about issues within different levels of appeal for that and that would be a more public debate. If there is more than one level of appeal because the decisions would be published as opposed - and so the decision itself would be part of the debate whereas if you have one level of appeal the debate can be just as robust within the one level of appeal but it's - we never see it. And that's true of every tribunal from in courts and I'm assuming commissions and so on.

  1. An internal reconsideration creates the perception that there is no independence to the reconsideration function. In some cases this may be a real problem since it is sometimes more difficult to overturn colleagues' decisions.
  2. Limiting any reconsideration to errors of law eliminates any further review of factual matters and any further review of medical issues. The latter especially are the heart of the compensation system. Important cases involving new areas of medicine and science will not have the benefit of deliberation at more than one level of appeal. It is reasonable to expect that judicial review applications in these circumstances will be more frequent and more successful. And Mr. Chairman we see the purposes of - in the current situation - there are two levels of appeals - the Review Board having the freedom if you like to make - as Mr. O'Brien put it - coveralls rather than tuxedos and that there is a next level of appeal to the Appeal Division and to be frank - I think one of the reasons for this second level of the appeal system - the Appeal Division - is to fix the Review Board decisions so that they are relatively immune from judicial review. If the Review Board had to concern themselves with that it would take more time; it would take more expense and so an advantage of the two level of appeal system is that the first level of appeal can make the best decision they can in the quickest time they can and the second level of appeal will take some of those decisions and we'll see how many they take in a minute - and they will - they will review those and provide a decision which is - and they have the time to deliberate because they don't have the same volume - and they as I say make it - they write a different kind of decision.
  1. The Board and now worker or employers has the right to take an issue to the Court of Appeal. Why the Board would want to do this is not clear since it retains control over policy and it can change that policy if it chooses?
  1. IMPROVING THE INQUIRY NATURE OF REVIEW BOARD PROCEEDINGS
  1. IMPROVING ACCESS TO THE REVIEW BOARD
  1. IMPROVING THE QUALITY OF DECISIONS AT TH REVIEW BOARD
  1. There are at times serious problems of delay in getting decisions from the Review Board.
  2. There are issues of expertise of Review Board panel members. In one finding a panel stated that issues of epidemiology were not relevant to an appeal whether a cancer was related to the work.
  3. We have been waiting for some time for a "leading case" which is considering whether the estate of a deceased worker can pursue the worker's appeal. This important matter should be dealt with without more delay in the appeal system.

RECOMMENDATION: We recommend that the Act be amended to incorporate the time requirements for decisions of section 91(3) into Section 90 of the Act.

RECOMMENDATION: We recommend that the Review Board include in its continuing education of staff education in epidemiology, toxicology, and other relevant scientific matters.

RECOMMENDATION: We recommend that the Commission confirm that the estate of a deceased worker can take over conduct of the appeal of the worker.

  1. ALTERNATE DISPUTE RESOLUTION
  1. THE APPEAL DIVISION
  1. MEDICAL REVIEW PANEL APPEALS
  1. Getting the Certificate from the doctor and the application from the worker or employer to the Board within 90 days of the decision being appealed.
  2. The determination by the Board (not the panel) - it is the Board - the Board controls the threshold issues of jurisdiction for Medical Review Panels - whether there is a bona fide medical dispute and whether the certificate has defined the dispute in sufficient particulars.
  3. The production of the Statement of Issues and the appointment of the panel of doctors.
  4. The examination of the worker.
  5. The issuing of the Certificate of the Panel.
  6. The implementation of the Certificate by the Board.
  1. RESOURCES FOR WORKERS IN THE APPEAL SYSTEM

Subject to any questions you may have that is our submission.

Q: Just back to the Medical Review Panel issue - in your view would this model work that the first level of appeal makes the - or if it is a single level of appeal makes the findings of fact that determines that it is a purely medical issue to be decided. It then refers that medical issue out to a panel of doctors to make a decision based on the facts found by the appellate body and that decision is finding and binding?

A: I guess there are some procedural concerns; one is that the - what - what access to the parties does the appeal have the - or what influence do the parties to the appeal have on the facts that go to the doctors?

Q: Well, it would be like any other appeal; there would be argument; evidence would be presented - the appeal body makes the necessary findings of fact and in which medical causation would proceed.

A: And then -

Q: Just like the Medical Review Panel now - the parties have no input - the issues are sent to it and it makes a decision that is final and binding. Lawyers aren't there during the Medical Review Panel deliberations.

A: That's correct. Yes. We tried that once and we sat in the waiting room.

Q: It occurs to me that that would only work if there was a single level of appeal because if you have a level of appeal above that then you couldn't make the medical determination final and binding because the facts might have changed on appeal.

A: What happens now as I say is that the facts are there - I mean you are right that that - well - what happens now is that facts that go to the Medical Review Panel can be subject to a further appeal. But also the facts that are there that go to a Medical Review Panel have been gone through the sifting process before so in broad terms there is some refinement of them. On your - your proposal I - there could well be dispute about the facts that the panel decides to send to whatever we are calling these doctors - for a final and binding determination. So it seems to me that there has to have to be some mechanism of review of that - of the facts that are sent to the doctor and that that's - this gets us into the one level of appeal versus more than one level of appeal. Is that an internal reconsideration on the proposal we've seen there would be no review of that because reconsideration would only be on error of law? So on that view of things the panel could make findings of fact that would be not reviewable. They would go to the Medical Panel, or whatever we are calling the Health Advisory Board - and then the other question is - is there a view of the medical findings of the panel? The medical findings of the Health Advisor Panel? So I think both those two points in the process - that is the decision by the panel on the facts of the case and the decision of the Health Advisory Board on medical issues from our point of view push you into consideration for a second level of appeal.

Q: Perhaps if you could - let us know your thoughts on the - this issue once again - the role of the appellate tribunal - the first one or the second one or however there might be - for each of them - in reviewing the initial adjudicator's decision in terms of the exercise of that discretion with the first level of appeal for example be - the completely substitutional jurisdiction - in other words could the discretion be simply revisited and an entirely new decision be made or would there be some parameters restricting the scope of that review?

A: I think it has to be substitutional and the - I think that's right in principle but I think it - also empirically based - that is we see these historical high allow rates in the first level of appeal and those are a function of the - a function of the complexity as the case is and a whole bunch of matters but it is also a function of the quality of decisions - the initial decisions and as we've been saying throughout these proceedings is - is - or a choice you're having to make is when things are - in one view things are out of control or when things are difficult then you either eliminate it by defining it out of existence or you constrain it by bringing in a level of appeal. For example, with respect to errors of law. And we think that that's not the way to assess quality in decision making at the Board.

Q: Would the second level of appeal; if they continued to be one - also include substitutional jurisdiction with regards to reviewing this exercise of discretion - or would it be somewhat limited?

A: I - we think it should be substitutional again - and that may seem repetitive but we frankly don't see - we have that now - these two de novo levels of appeal - the Review Board and the Appeal Division. We - there's been controversy; there's been disagreements between the Review Board and the Appeal Division from time to time - I think Mr. O'Brien had a kind of seasoned view of that - that these things happen and we don't see that that's caused a major problem.

Q: What I have trouble understanding - is if we were to promote some aspect of a refinement of issues as they go through the chain of adjudication to the appeal system - if each level is substitutional in its essence a trial de novo - what are the procedural mechanisms that are promoting refinement of processes, and procedures and issues?

A: Well if you look at the numbers only 58% of the decisions - the findings of the Review Board do not go to the Appeal Division - and it is not as if everybody that loses at the Review Board goes to the Appeal Division - there is a genuine sorting out there.

Q: Well certainly the number of the cases as you go through gets smaller and smaller. There's no question.

A: It's not just sort of in an incremental fashion - it's quite dramatic.

Q: But for a given case what is the process then - what would be the procedural mechanisms that would encourage or promote refinement of issues?

A: We think the current system does that.

Q: My other question was - pertaining to the balancing of these two important aspects of adjudication - that is independence versus consistency

A: Yes. Yes.

Q: And I'm not sure if you touched on it - but if you could maybe elaborate a little bit on that area about the - how those two somewhat conflicting objectives fit within the system - whether one has greater priority in your view than the other and how they can, if at all be reconciled?

A: Well, I don't think they can be reconciled. I think when you sit in a court and as you struggle with your fellow judges on this issue. And there's academics who make a living out of writing on just this issue so this is not something that can be fixed in a kind of technical sense. This is a tension within triers of fact everywhere - whether it's administrative tribunals or the courts and the reason for that - two reasons -one is that every case is different. You know, sometimes we think that we couldn't stand to do another case on such and such and then when we get into it it is different from the last one we did. So - and that's because the nature of people in the province they deal with. The other reason is that the triers of fact - tribunal members, judges, are human beings too and they don't have the same view of the world and they may have different values. We've had the opportunity to think about this - Mr. Winter and I had the opportunity to think about this and talk to the Review Board about it. So the starting point is that there is always that tension and the -I guess the best you can do is to keep that tension - if you like at a constructive level. There is a constructive aspect to that tension. That is you warrant independent decisions from every level of appeal - whether they are here in this building or over in Marpole. I mean that's what you want. On the other hand they can't be running amok. They can't have maverick appeal levels or appeal panels. And so you need mechanisms in place to prevent that. As I understand it in Ontario one procedure they have there - I think it is the WCAT or something is that if an appeal panel is going to make a decision contrary to previous decisions - either at their own level or of a superior level then they have to expressly say that and they have to give express reasons for making a contrary decision. There seems to be some merit in that. Mr. O'Brien pointed out that you can a decision in this context of the Appeal Division saying one thing and then -I think the example was the Charter -and then comes the new case law from the Supreme Court of Canada. Well, you know I think the Review Board has to have a look at that new case law and as the Supreme Court would do in the face of previous Court of Appeal Rulings make the decision that they feel is the best view of the law. Now that's not a situation - that's not a justification for just going off and doing your own thing. And that's a very serious concern from my clients' point of view and I guess from the employers' is one of the things we value most from the system is predictability. Workers and I'm guessing employers come to lawyers and they say I've got this case - can you tell me about it and am I going to win or not? What are my chances of winning here? And the - the - one of the factors that goes into that is the predictability of the tribunal or the court that you are appearing in front of. And if they are all over the map then it's hard to -you know - you end up giving lawyers advice we think but that. And so it is octopus advice on one hand; on the other hand; on this hand so - so predictability is an important aspect of this as issue as well. In the court system theirs is it - between court judges and that's probably something as I understand it - cometie is something that is between judges at the same level - doesn't mean it is binding if your fellow judge makes a decision it doesn't mean it's binding but out of respect and out of efficient use of the system you defer to that - your fellow judge's decision. We think that there is some value in that - that concept in the appeal system here. That is the fact -and implicit in all that Mr. Chairman is a very important administrative point is that the members of the Review Board have to know what other members of the Review Board are doing. That is you - there has to be some internal review of the issues that are currently alive in the system about what decisions are being made. There has to be a systematic review within each level of appeal and the communication of that review. So that's resources; the Review Board has recently hired legal staff. That's a good thing - they could probably use some more and I think they could use a lot more support in terms of writing their decisions and researching their decisions. But those are cost questions. As I've said that's an allocation of resources and - that's - that would be absolutely fundamental to issues of consistency is for within the Review Board people to know what other panels are doing. A sort of rambling answer to your question.

Q: Should a decision of the Appeal Division be binding on the Review Board? If there is a refining process at all taking place?

A: Yes, yes. I think the simple answer is yes; the Appeal Division is a superior level of appeal. And but this goes back to what I said earlier - and this is how judges and lawyers not only make their living but bring their professions into disrepute in the public. Not every case is the same. And so you can have a case in that's different in facts or as we talked about earlier the Supreme Court of Canada could have said something four years ago and there is a recent decision that says something different. So those matters have to be - it can't be a parroting of the Appeal Division decision by the Review Board. It has to be and this is where I guess the independence comes in. It has to be a reasoned - a reasoned reconsideration of previous decisions and as I said if - it - there has to be a genuine reason to change the previous - a genuine reason to not follow the previous Appeal Division decision. So I would say - yes it's binding except for when there's genuine reasons to not be binding.

Q: Does it follow then that a Review Board decision would be binding on the adjudicator?

A: Yes. Yes; I don't know that that's - that's a particular issue - it used to be - this the section 96 referrals I talked about historically. It was a big issue before and even then - before that history - I think the old boys review made recommendations rather directions to the Board and so there was some latitude in the Board not following the recommendation.

Q: If the appeal system was compressed down into a single level of perhaps the model that was proposed by Mr. O'Brien - would this result in more cases going to the courts? I

A: I think that that would be undoubtedly true; and I think as I said before there's a function in the second level of appeal of making decisions appeal proof. And the - we know that people in the court system read the newspapers and they know what happens in other - in - other tribunal situations and the - my experiences is that judges are alive to what is going on outside in the world. And when see that an important issue affecting entitlement to workers' compensation which can have a dramatic effect on someone's life is given only one level of appeal judges understand that - they never say it; you never hear them say that but they understand that an appeal - a judicial review that comes to them from an appeal system that's had 2 or 3 times at the issue is different than something that comes to them that has only been looked at once. And that's just a - that's objective view of - a subjective - that's my subjective interpretation about how the courts work. I think it is a fair one.

 

ALAN WINTER

Q: Okay; there all sorts of other aspects - like how you get non-medical facts, decide how you get medical facts and so on.

A: Yes, and you'll see I'm going to go through all of it - there's a mix and I think I'll be there in a minute - external versus internal - the Review Board suggests external. The time limits I don't agree with; I don't agree with the Medical Review Panel provision being binding for a lot of reasons we talked about so I'm going to go through all those things.

And then Mr. Steeves said today that two levels of appeal -he left the impression that the Review Board is an ad hoc, quick - which in my submission it isn't necessarily most of the time - but an ad hoc, quick informal appeal that doesn't have to worry about right or wrong because there is another level above them that is going to fix it up. Again - there is no way you are ever going to convince the Review Board that that's their role. And nor should it be. If they are going to remain as a valid level of appeal they are going to do whatever it takes to be right in their mind. And I don't think they believe they can be wrong because they know there is a quick fix above us.

Q: I don't think he is saying that in all fairness; I think he is saying that the process is that is being used at the earlier level might be more informal as opposed to that at the higher level.

A: I think the Review Board thrives on informality. And I'm not sure that you'd see any difference if you took out the high level and left the Review Board there. And then Mr. Steeves said that if you only have one level there would be more judicial reviews. He may be right. And more successful; I disagree with that. I think the law on judicial review is becoming more and more and more difficult to go to court to convince the courts to interfere in a decision made by a specialized tribunal. So there may be more but I don't think there is going to be more success. The other comment I want to make before I move to internal/external is Mr. Steeves has proposed the - for the employer not to have party status at the Review Board and we've already talked about the concern about if the employer wants to appeal what they have to do. But even on the respondents' side - it raises a lot of concerns in my mind. Take the cancer cases as he's referred - those cancer cases were all - the employers were respondents - they went ten days. Those were very significant cases to put in the system; the precedent value - it just says - as we anticipate the brain cancer would be precedent when the employer said we don't oppose. The precedent value is such that the employer should obviously have the right to be party status. To probe the whole aspect of the case from the view point of being a party as opposed to just being a witness having the opportunity to come up and present evidence but that is the end of that.

Q: can we go back a second to your part about the courts not allowing more claims - do you not accept Mr. Steeves' point that that courts would probably give consideration to the fact that a case has been already through a multi-level of appeal and review in making their determination as to whether or not what type of consideration they gave in their review?

A: A. - I don't accept it; B. it may happen but you are never going to read it I think because C. the law is quite clear about giving deference to specialized tribunal. Period. That is law on judicial review; and it is an extremely tough test to get around - excess of jurisdiction or patently unreasonable so no I don't think that the courts are going to say - well it only went to one - the Appeal Division - that we are going to start overturning more because they didn't have the additional safeguards. I don't think safeguards are three or four levels. It's having a competent, well-trained appellate level.

Q: So one level would be the end of the road?

A: With judicial review also; you can't take that away - nor should you. But yes one level would be the end of the road. One formal level.

Finally Mr. Steeves said that employers have more resources to employ -this one of the reasons why they shouldn't be at the Review Board - to employ consultants and other representatives. And I indicated to him that I was going to challenge that because of the information we received -I got it yesterday - we got a letter from the Review Board -and Mr. Steeves had asked the Review Board for information about how many people are represented and not represented by whom and the Review Board said they had that information. It came yesterday; I got it. So I'm sure - it was addressed to Mr. Robertson so I'm assuming that the Royal Commission has it. When you look at it it's shocking about the level of representation that the worker has as opposed to the employer. The numbers in all years except 19 - in all years the level of representation for the worker are substantially greater than the employer. And what was really surprising was the number of lawyers involved for workers. But the main categories are worker's advisor, lawyer, and union representative. For the employer you have some consultants, you have some organization, some lawyers but the percentage when you work out the unrepresented is always much greater on the employer's side for their appeals than the worker's side. So I don't think that justifies the argument that employers have the resources. So those are the submission on one level; I would like to turn to the issue of Internal versus External - assuming we end up with one level.

Q: Large employers would go there - like - they would show up - I mean MacMillan Bloedel probably don't need anybody to represent them do they?

A: I'm not sure I agree with you. Sorry - that large employers show up that readily and but I do agree that large employers generally have a more claim focus - they either have a claims department - or they have a claims and an occupational health and safety department. If they have a claims department; yes you are right and only the claims person goes to sit and listen and I think that is comparable in their experience and their expertise to the union business agent for example - I think that is an equal level. But a lot of employers don't go - was my experience. A lot of employers when it comes to budgeting legal fees or representation fees -they don't budget Workers' Compensation Board as a separate heading; they budget Workers' Compensation Board for assessments. And they know they are going to pay assessments and that is in their budget. And the legal fees are for the other ones that are a direct challenge like a labour relations board hearing or a human rights hearing or an employment standards hearing or a wrongful dismissal or a penalty hearing on a Workers' Compensation Board matter that they get involved in because they are challenged; it is a direct fault issue. But when it comes to claims it's taken a long time to get employers to get involved. And that's why I've been finding the tone disturbing over the past couple of weeks - because I have spend significant efforts - right or wrong - to get employers to get involved in the system; understand the system - go to the appeal levels and try to figure out what is going on - you have a much better ability to deal with Workers' Compensation Board on a day to day basis if you understand it as it is going through the system. And then to be told that we are becoming too aggressive and we shouldn't be involved goes kind of contrary to that but those are going to be some of the philosophical decisions that the Royal Commission is going to have to work out.

Internal - external - the primary factor if not the only factor of any import raised by the Review Board is independence. The need for independence and the perception of independence. And that is a very important factor; I don't want to belittle that. But I tend to rephrase it now based on experience in the system and I asked Mr. O'Brien about this - I tend to call it the ability to work effectively within the system. And I would like to focus on that - which level - internal or external is going to be able to work effectively with the system. I think everybody agrees - all counsel agree and I think all the presenters agree - policy development rests with the governance system not with the appellate system. The problem becomes how do you ensure that that line of separation is maintained? And that is one focus of internal versus external. Internal -the governing structure is supposedly responsible for - accountable for the appellate structure - when it is internal. We are going to talk a little more about this tomorrow on the Hughes' Report. But it very much depends for this policy line separation for the governance to have the ability and the willingness to effectively oversee the appeal tribunal and hold them accountable for that. And I think our system has been weak on that in governance.

If it cannot be effectively done through the governance system and the internal system then external probably is the better way to go. But you still have the same problem. You know so okay I don't think you are going to find any difference when you go external about policy creation and implementation. I think you are going to get tough decisions through the system and I think both the Appeal Division and the Review Board do the best they can. And both - in a lot of cases - make the same decision and both in the view point of the outside communities may look at that decision and say hey you are creating policy. Internal, again, governance is supposed to deal with that; external you can't use governance to deal with that. You are probably looking at a third party court. I am always hesitant to be recommending a strong role for the court but if we go external I think we have to do that. And that is the recommendation of the Review Board when you read their submission about the role of the court on those kind of issues. So that brings me to another reason for external - I'll continue on the policy - Don Munroe's advisory council said this on page 22 - about one of the concerns - the disadvantages he called it of a free-floating internal tribunal. And the first disadvantage has to do with the division of responsibility for policy making on the one hand and adjudication on the other. Whether one chooses an internal or external system it is irrefutable that only one body should be making policy. Further that body should be the Board of Governors with the advice and the assistance of the Executive side of the system. We all agree with that. From the experience of at least one Canadian jurisdiction - and here is the key - and this strikes us as predictable. The establishment of a purely external tribunal of last resort sets up a competition as to where the general policy making for claims really resides. This is counterproductive, both to the work of the system and to its overall credibility.

My personal view is that that is a correct opinion - the predictability of that is you are going to have that tension. And it wasn't just Mr. Munroe's again. I know Mr. O'Brien disagreed with that and explained why but it was made up of 13 very diverse people working with Mr. Munroe on that coming up with the - as I said at the beginning - I think he even mentioned this which he was surprised about - a unanimous report. So it is a fact that you have to weigh in mind is independence - it certainly an role and we'll come back to that - but there are also other factors that will have to be looked at.

Q: Mr. Winter can I interrupt before I forget. Would the making of policy by an external appellate tribunal be reviewable on judicial review with a privative clause?

A: I think it depends on how the legislation is worded.

Q: Go to jurisdiction?

A: I think it would have to be - A. you can deal with it in the privative clause if one wanted to but I think most of the jurisdictions actually put it in a provision allowing similar to what was recommended by the Review Board suggesting or - not suggesting - but allowing to go to court on that issue. If you don't put in that provision it depends on how you word authority to create policy because if the authority is very clearly written that it rests with one body and another body tries to exercise that authority you have an excess of jurisdiction. I think that is a judicial review matter. I think the problem is always going to become as it was when you talk to the Appeal Division now - we didn't create policy - now you get into the discussion of - did you didn't you? I think the internal if it is well run - the governance structure is supposed to have a better role in saying - well we don't have to debate this - whether you did or you didn't - you did. These are the reasons we think you did. This is the problem we have; we are going to deal with it. When you have an external from the governance, they don't have that ability. Maybe they have an informal line of communication but there is no ability for one to say to the other - you are accountable to us. We are responsible for you.

Q: Surely it is not that hard for a tribunal to determine when they are venturing into making policy as opposed to apply it?

A: I had - I thought it was fairly obvious - I keep using the case - I keep getting told I'm a lawyer that is why I us it - the legal fees case. The policy is quite clear - no legal fees. Period. I tend to agree that that's a fair amount of discretion. And there are cases that have gone to court on that. The Appeal Division didn't just say there is a potential to use our discretion here. They went a step further to say we will recognize legal fees when there is a flagrant abuse. And that has now become the test. That is a policy issue they could have recommended to the governors that - I think you should put in a test of flagrant abuse and you were there you can go to the transcript. I was asking Ms Kobayashi about it and that is the attitude you always get from them. And again I think that is the proper attitude you are going to get from an appellate structure. Nobody if they are doing their best is going to come and say to a third party -yeah we know we created policy - we know we can't - but we did it. Obviously they believe they didn't do it.

Q: Isn't the judicial review the deterrent to the tribunal to make policy and if they do err then the courts can straighten it out?

A: They could and I think the section 621 kind of example - one judicial review was kind of similar to that but again I don't think it is wise to build a system that is going to be leaning on the courts more and more. And I will come back to why I am leaning toward an internal one just to continue the internal/external - you have a very fragile system; we have been unstable for a long period of time. We need stability; we don't need new ways of instability and using the courts for judicial review to enter our fights which they will turn into of whether you created a policy or not - I just think is wrong for our system at this time. I'll come back to that in a minute. I just don't think it is the time to have that fight going on. But I accept your ultimate point. If it is an excess of jurisdiction the courts can say that. What you then end up having I think also is - okay - nobody is going to say the court is choosing sides but that is what it is going to become. Well - you know this case they said the governors were right they created policy - nyah, nyah, nyah, nyah. And this case the Appeal Division well you were right you didn't create policy, nyah, nyah, nyah - I think it starts to harden the positions with each other about what is policy and what is not policy and who is role is it? Because you have a third party arbiter that is always probably going to give you a different decision and different lines because policy is not an easy issue to decide when is it interpreted and when is it created? I think those are easier decisions to deal with internally.

Q: So you are balancing the perceptions of those who are being dealt with in the system -that it is independent of the Board and the value of that against the problems you raise?

A: And again I think independence has a humungous value and as I said if people are convinced at the end of the day that the internal governance system cannot control policy then I don't think internal works; I think it has to be external. Because you are not going to court but you are still going to have the problem. And then we still have the same problem but there is no one to go to say we have a problem. Governance doesn't deal with it; the Appeals tribunal in good faith doesn't believe they did it. And I think Mr. Buchhorn said it is not for the parties to have to take this dispute to court. When you use the external you are probably going to build in the system itself to take itself to court because it is two different parts fighting each other. But again my concern is going to be the stability issue. So let me just elaborate on that. There has always been bickering in our system - the Review Board and the Workers' Compensation Board before we had a Appeal Division obviously had tensions and it is recognized in the administrative inventory and that is to be expected. The Appeal Division and the Review Board have had tensions. Worse times and better times; I've reviewed some of those with the witnesses and certainly there are tensions. It leads to bickering. We are at a point in time when we have gone through the governance system in the 1990's -we went from commissioners, to governors, to administrators - three separate systems just in the 1990's. We've gone through 3 separate Chief Executive Officer's/Presidents and are still looking for another one in a 5 or 6 year span. You've heard - we've had discussions the employer community has raised concerns about he delay in getting important things done. And some of the answers that labour or I think it was mainly Mr. Steeves has asked the witnesses - Well isn't part of that because the governance structure is falling apart? And it may be true; but again it's been a very unstable 6 years - I know what the premier said when this commission was created - it was a focus from the disabled workers' side. But if you go back and look at history I think a big factor was they first found that the existing governance structure was - dysfunctional was the word used. Got rid of that and put in a Panel of Administrators and we moved to a Royal Commission.

So I think there was more than one feature of the system that prodded a Royal Commission. And I think governance was an extremely important feature of why we have a Royal Commission here. And I think it is an underlying need for stability. So what we need in BC right now is stability; a strength of leadership and when we take healthy bickering that's fine but we don't have healthy bickering because we are not stable enough to have bickering that is healthy in my submission. You have a very polarized labour/employer environment right now. And BC has often been that way.

I don't think it will be very difficult for employers and labour to choose sides. We'll see an external appeal function that we think is doing something wrong; if labour likes that decision we'll support the governors and we'll go to them and they will be on the other side or vice versa. I think you will see a lot of that in BC just because of the nature the relationships are right now. Again the system I don't think can handle that right now and that's why I think it turns dysfunctional at the governance level. The majority rules. Labour and employer; it doesn't work. So some comments on Independence. Again, I've already expressed my view that it is a very high profile issue but it has to be balanced with others. Can there be independence of an internal within the Board as an appellate? I think it can; it's there now. I think it works. I think the Appeal Division has a significant amount of credibility with the people that understand the system - that work with the system. I think they have as much credibility as the Review Board and as much discredibility in certain cases as the Review Board. I think a concern is having the Chief Appeals Commissioner sitting as a governor and not a voting governor. I think that does create a stronger perception of loss of independence. If you are going to create external or internal you have to separate the judicial function from the administration function. Having the Chief Appeals Commissioner sit as a non-voting governor really blurs that independence. And that is different than saying the Chief Appeals Commissioner if it is internal has a reporting function. And should be invited to the governors' meetings to report on what's going on - significant issues at the Appeal Division - I think that is mandatory. And should be included but not as a non-voting member. And so if we slip down to external, I think the exact same thing applies. Nobody seems to say that if you ha