BC Court of Appeal rules that litigants must first raise constitutional issues before administrative tribunals

In Denton v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 40, the BC Court of Appeal recently answered an important question on the process by which constitutional issues are decided in the administrative context. The Court confirmed that litigants who appear before an administrative tribunal which has authority to hear questions of law must raise constitutional issues before that administrative tribunal and cannot, for the first time, raise the issue in the BC Supreme Court.

Background and decisions 

In 2012, Ms. Denton, an employee of the Provincial Health Services Authority (“PHSA”), made a claim for compensation under the Workers Compensation Act (the “Act”). In January 2013, a Workers’ Compensation Board (“WCB”) case manager denied Ms. Denton’s claim under the Act. Ms. Denton appealed the decision to the WCB Review Division. The WCB Review Division has the authority under the Act to decide questions of law, including constitutional questions. When before the Review Division, Ms. Denton did not raise a constitutional challenge to the Act or to the related WCB policies. The WCB Review Division denied Ms. Denton’s appeal.

Ms. Denton appealed to the Workers’ Compensation Appeal Tribunal (“WCAT”), which, unlike the WCB Review Division, does not have the authority to consider constitutional issues. WCAT dismissed Ms. Denton’s appeal. It was from this order that Ms. Denton filed a petition for judicial review to the BC Supreme Court. It was also at this point that Ms. Denton, for the first time, raised the constitutional validity of sections of the Act and certain portions of the policy as being contrary to the Charter of Rights and Freedoms. The problem was that Ms. Denton waited more than seven months to do so, and, under British Columbia’s Administrative Tribunals Act, there is a 60-day time limit to file a petition for judicial review.

The PHSA applied to dismiss the petition as out of time. Ms. Denton applied to obtain an extension of time, which required her to demonstrate to the court that there were reasonable grounds for relief, among other things.

The BC Supreme Court denied Ms. Denton’s application for an extension of time and dismissed the judicial review. Among other things, the Court found that Ms. Denton’s Charter challenge had no reasonable prospect of success because she did not raise these issues before the WCB Review Division, which provided her, in the Court’s view, an adequate forum to raise a Charter challenge even though WCAT could not consider such issues on further appeal. The failure to raise the Charter challenge before the tribunal with the power to decide constitutional issues meant that there was no proper record before the Court to consider the constitutional issue. Ms. Denton appealed further to the BC Court of Appeal.

The Court of Appeal’s decision

The BC Court of Appeal dismissed Ms. Denton’s appeal. The Court held that the Supreme Court made no error in principle in concluding Ms. Denton had no reasonable explanation for her delay in filing a petition for judicial review. With respect to the constitutional issues, the Court of Appeal held that the grant of legislative authority to the WCB Review Division to decide constitutional issues showed the legislative intent to have constitutional issues decided at first instance by the specialized tribunal. Accordingly, courts should not circumvent this intention by hearing a judicial review on a constitutional issue for the first time without the complete context and a developed record of adjudicative and legislative facts.

The Denton decision confirms an important principle for administrative law: where the administrative tribunal has authority to hear constitutional questions, litigants are required to raise those issues before the administrative tribunal before bringing them to court.