In a recent judicial review decision, the BC Supreme Court looked at when it should award court costs against a tribunal — as distinct from the parties appearing before it — where a decision is under review and the court concludes the tribunal breached procedural fairness to one of the parties: J.T. v British Columbia (Workers’ Compensation Appeal Tribunal), 2025 BCSC 246 (“JT #2”).
The Court considered the issue of court costs after previously deciding the tribunal had failed to afford procedural fairness to one of the parties: see J.T. v British Columbia (Workers’ Compensation Appeal Tribunal), 2024 BCSC 994 (“JT #1”).
Procedural fairness is a perennial principle for all administrative tribunals. While the level of procedural fairness may differ from tribunal to tribunal and from process to process, tribunals must ensure a procedurally fair process for parties before them. Allegations of breaches of procedural fairness are often part and parcel of most judicial review applications. A common remedy for breaches is setting a decision aside and remitted the matter back to a tribunal for a new hearing (or consideration, as the case may be). But sometimes, a court may award of costs against the tribunal, despite a general rule against such costs.
The Judicial Review Decision (2024 BCSC 994)
A worker (the eponymous JT) sought to appeal a decision of the Workers’ Compensation Board (“WCB”) denying his claim for compensation for a mental disorder caused by bullying and harassment at their workplace (JT #1 at paras 1, 19-21). The Workers’ Compensation Appeal Tribunal (“WCAT”) heard the appeal and denied it (JT #1 at para 1). The worker then sought a judicial review on the grounds that WCAT’s decision was patently unreasonable, and they had breached procedural fairness. The other party to the dispute, JT’s employer, did not respond to his petition. Without another party to oppose the petition, counsel for the tribunal appeared to defend the merits of the tribunal’s decision.
The Court reviewed the matter and found WCAT’s decision patently unreasonable (JT #1 at 98). The Court also found WCAT had breached procedural fairness in two respects (JT #2 at 23-29, 67, 69, 75, and 91-94):
1. A WCB officer requested a psychological assessment of JT to provide a diagnosis and the likely cause of the diagnosis to assist in determining whether JT’s claim was compensable. The WCB officer provided a summary of 11 incidents of bullying and harassment to the assessing psychologist. Following an assessment, the WCB denied compensation, noting that the assessment indicated that work-related stressors were not the predominant cause of JT’s mental disorder. JT sought reconsideration by the WCB, providing details of 89 incidents of workplace bullying and harassment. The reconsideration was denied. JT then sought an appeal with WCAT arguing that the psychologist was not provided with all information, particularly the full 89 incidents. WCAT found the psychologist had sufficient information.
The Court however, held that WCAT had acted patently unreasonably by not exercising their discretion to obtain an updated psychological assessment. The Court also held, alternatively, that this can also be framed as a breach of procedural fairness – WCAT owed JT a high level of procedural fairness and failed to ensure they had the benefit of a psychological assessment based on a complete and full record.
2. On a slightly less complicated respect, the Court found that WCAT failed to provide JT with a letter setting out WCAT’s evidentiary directions (specifically, what evidence the WCAT was prepared to receive from JT and what evidence WCAT would not be soliciting from JT’s employer) in advance. Instead, the Court found that the WCAT Vice Chair conducting the hearing simply read the letter aloud to JT on the day of the hearing and proceeded with the hearing. The Court held that WCAT breached procedural fairness by failing to adjourn the hearing so that JT would have the opportunity to review the letter and prepare for the hearing accordingly.
The Court Costs Decision (2025 BCSC 246)
At the conclusion of the judicial review decision, the Court provided both parties with an opportunity to make submissions on costs.
The Court reviewed the law, specifically about the traditional immunity protecting quasi-judicial tribunals from costs awards, and about two key exceptions to this traditional immunity (JT #2 at paras 10-11):
1. the tribunal exhibited misconduct or perversity in the proceedings before the tribunal; or
2. the tribunal had “gone too far” in improperly arguing the merits – this would not apply where a tribunal is forced to argue the merits in the absence of other respondents.
The Court disregarded the second exception as it was not applicable but found that “misconduct” (as set out in the first exception) may include situations where courts have found breaches of procedural fairness (JT #2 at paras 12 and 14). As costs awards are discretionary, the court will be more likely to award costs based on significant breaches of clearly applicable procedural fairness rules (JT #2 at 14). With respect to WCAT’s breaches, the Court found the two identified breaches, taken together, to be significant and clear – WCAT owed a significant level of procedural fairness and the failure to seek a further assessment was a crucial failure (JT #2 at para 23). The Court declined to order special costs against WCAT but did order tariff costs (on Scale B, reflecting a matter of “ordinary difficulty”) against WCAT (JT #2 at 27-29).
As reflected by this duology of decisions, failures to uphold procedural fairness can have consequences to a tribunal apart from a court setting aside a decision and requiring that the tribunal reconsider the matter.
For colleges under the Health Professions Act, this case may be of interest to decision-making tribunals subject to review by or appeal to a court, such as discipline committees and the Health Professions Review Board.
J.T. v British Columbia (Workers’ Compensation Appeal Tribunal), 2025 BCSC 246
Victor Chan