Denton v British Columbia (Workers Compensation Board) is a case about the proper venue for a workers’ compensation claimant to raise a Charter challenge. Specifically, this case considers whether a claimant is foreclosed from launching a Charter challenge for the first time when an administrator’s decision is being reviewed by the courts if the Charter claim had not been raised during the administrative decision-making process itself. The workers’ compensation regime is unusual in that some, but not all, of the decision-makers in its internal review process have jurisdiction to grant Charter remedies. A similar type of administrative regime exists for income assistance matters. The preclusion of Charter remedies before courts in the context of workers’ compensation and social benefit regimes raises serious concerns about how claimants can meaningfully access Charter justice.
WEST COAST LEAF’S INVOLVEMENT
West Coast LEAF is working in coalition with Community Legal Assistance Society (CLAS). We will intervene in this case at the BC Court of Appeal to argue that protecting and promoting meaningful and equal access to justice requires courts to retain discretion to hear Charter claims and that courts have a constitutional duty to facilitate access to justice. The confusing jurisdiction of each appeal body in the workers’ compensation system creates a real risk that claimants will be denied the opportunity to vindicate their Charter rights. Given the complexity of these administrative regimes, by prohibiting claimants from raising Charter concerns before the courts, laws and government actions may be immunized from constitutional scrutiny in violation of the rule of law.
The BC Court of Appeal released its judgment on November 23, 2017. The BC Court of Appeal dismissed Ms. Denton’s appeal on the basis that the trial judge had properly considered that her effort to have the court review the workers compensation denial decisions was out of time. The Court also found that Ms. Denton ought to have brought her Charter challenge at the first decision-maker stage. The Court viewed the issue narrowly as to whether a court should decide a constitutional issue where the litigant did not raise it before an administrative decision-maker who had the ability to decide it, and thus would have created a record for the court to review. The Court held that it would be improper for Ms. Denton to raise her Charter issue at the judicial review stage, when she should have raised it with the workers compensation board.
The Court of Appeal did not take the opportunity to look at the meaningfulness of a litigant’s opportunity to seek Charter justice in administrative regimes, particularly where the litigant will not have legal advice. A broader perspective and the reality on the ground of the administrative system are essential to making access to justice meaningful.