B.C. top court affirms workers’ compensation board accurately summarizes reasonableness analysis

In Ahluwalia v. Workers’ Compensation Board of British Columbia 2023 BCSC 196, the British Columbia Supreme Court found, on an application for judicial review, that the Workers’ Compensation Board of British Columbia had accurately summarized the reasonableness analysis that was required by the Supreme Court of Canada decision, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.

Jagdeep Singh Ahluwalia brought a judicial review application regarding the decisions of the Workers’ Compensation Board of British Columbia, which arose from an injury he suffered on a job site. He argues that the board acted unreasonably by (1) determining that working as a paralegal was a reasonable occupational goal for him and (2) terminating his job search assistance and benefits before he had secured a position.

Background, initial disability award

In April 2014, Ahluwalia sustained an injury to his left little finger in a workplace accident. Although he was working in construction at the time of the incident, Ahluwalia was qualified as a lawyer in India. He received temporary total disability benefits through the Workers’ Compensation Act until his condition stabilized. In July 2015, after Ahluwalia was diagnosed with chronic regional pain syndrome and chronic pain in the injured finger, the board determined that his condition was a permanent partial disability. In such cases, the board employs two methods to assess a disability award: the “loss of function” method, which estimates the worker’s degree of functional impairment as a percentage of total disability and applies it to their average earnings, and the “loss of earnings” method, which compares their pre-accident earnings to their post-accident earning capacity. In Ahluwalia’s case, the board decided to use the loss of function method because his earning capacity would be equal to or higher than his pre-accident income and referred him to the board’s Vocational Rehabilitation Services (VRS) to receive assistance in returning to work in a suitable occupation.

The initial plan was for Ahluwalia to work as a legal administrative assistant, on the basis that such positions were “physically suitable and reasonably available” to him and would provide earnings equivalent to his pre-accident earnings. Ahluwalia sought a review of this decision with the board’s review division but was unsuccessful. He then appealed to the Workers’ Compensation Appeal Tribunal. Although the tribunal lacked jurisdiction to order it, VRS developed a new vocational plan for Ahluwalia based on the position of a paralegal. Ahluwalia sought reviews of both the new rehabilitation plan and the denial of the loss of earnings method; both decisions were upheld by the board. In May 2019, Ahluwalia started receiving vocational rehabilitation job search benefits while he looked for work as a paralegal. He received these benefits for a total of 36 weeks before they were terminated.

Workers’ Compensation Board decision

Ahluwalia claimed that due to his disability, he could only type 20 words per minute, which was less than the 45 words per minute required by employers. However, the board rejected this argument. In B.C. its review of job postings on file, the board found that the required duties of a paralegal, as listed in the National Occupation Classification, did involve the use of a computer for tasks such as drafting documents. However, there was no mention of the minimum typing speed that Ahluwalia had described.

The board observed that Ahluwalia was excelling in his paralegal training program and had achieved perfect grades. Further, they took into account his legal education and experience in India, as well as his diplomas in legal administration that he had obtained in Canada. After evaluating his background and training, they determined that it aligned well with the qualifications listed in the job postings for paralegals on file, and that such employment was readily available to him.

The board acknowledged the request for funding Ahluwalia’s retraining as a lawyer, but they noted that it would surpass his “vocational rehabilitation entitlement.” This entitlement was limited to replacing his pre-accident earnings, and therefore did not extend to covering the cost of retraining as a lawyer.

The review board responded to the termination of Ahluwalia’s job search benefits by pointing out that he had not fulfilled the board’s minimum requirements for “contacts” with potential employers per week. These requirements had been communicated to him at the beginning of his job search benefits. Furthermore, Ahluwalia’s job placement provider reported that his level of participation in his job search was low, he had a negative attitude towards his employability, and he limited his job search to areas close to his residence, rejecting interviews in other municipalities.

British Columbia Supreme Court judicial review

Ahluwalia argued that the board’s implementation of the paralegal rehabilitation plan and termination of the job search benefit were unreasonable. He claimed that the board ignored evidence of his worsening medical condition, disregarded his request for alternative career training, failed to properly consider his typing speed in relation to the requirements of paralegal positions and that the previous extensions of his job search benefits recognized his inability to secure a paralegal position despite his efforts.

The board countered that Ahluwalia’s concerns were based on factual findings by the review division, which were not unreasonable. The board emphasized that it was Ahluwalia’s medical condition at the time of the review that was relevant to its reasonableness. The board argued that Ahluwalia’s reliance on post-decision events to support his claim of unreasonableness was flawed, and that his subsequent claims of deteriorating health and increased pain needed to be presented and accepted as additional conditions before any additional support could be provided.

The British Columbia Supreme Court, applying the Vavilov principles, used the reasonableness standard of review to analyze the judicial review application. The court relied on the principle that a decision must be based on reasoning that is both rational and logical and must be justified in relation to the relevant constellation of law and facts. The court found that the board’s general observations about the nature of Ahluwalia’s submissions were correct, and that the decision must be based on the evidence that was before the decision-maker at the time.

The court concluded that neither of the decisions under review were unreasonable. Regarding the decision upholding the termination of Ahluwalia’s job search benefits, the court agreed with the board that it was a separate inquiry from the suitability of paralegal work as an occupation. The reasonableness of the decision related to the assessment of Ahluwalia’s job search efforts. The court noted that the decision was made in the context of extensive job search benefits already having been provided to Ahluwalia for three times as long as the default maximum under the applicable policy.

The court found that the board’s focus on the extent of Ahluwalia’s efforts at that late stage was reasonable. Further, in examining the reasonableness of the paralegal rehabilitation plan and the inconsistencies with the typing speed, the court found that there is nothing internally contradictory about the weight that was given to his typing ability in relation to his employability as a paralegal given the efforts that the board made to supplement Ahluwalia’s typing deficiency.

The key takeaway from this case is that administrative board reviews must be based on the evidence that was before the decision-maker at the time, and their reasonableness cannot be retroactively assessed based on new developments.

This article was written by Alisa Mirkovic and was originally published in Law360 on April 28, 2023. Alisa Mirkovic is an employment lawyer with Monkhouse Law Employment Lawyers.

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