Peter Underwood Claimant v. Employment and Assistance Appeal Tribunal, 2018 BCSC 1072

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Underwood v. British Columbia (Employment and Assistance Appeal Tribunal), 2018 BCSC 1072 Date: 20180629 Docket: S186623 Registry: New Westminster Between: Peter Underwood Claimant And Employment and Assistance Appeal Tribunal Respondent Before: The Honourable Madam Justice B.J. Brown Reasons for Judgment Counsel for Claimant: Peter Underwood (Appearing in Person) Counsel for Respondent: D.G. Cowie Place and Date of Hearing: New Westminster, B.C. April 4, 2018 Place and Date of Judgment: New Westminster, B.C. June 29, 2018 Introduction [ 1 ] Mr.

Underwood is seeking a designation as a person with disability (“PWD”) pursuant to s. 2 of the Employment and Assistance for Persons with Disabilities Act , S.B.C. 2002 c. 41 [the “ EAPDA ”]. Mr. Underwood’s designation request was first denied by the Ministry on July, 19, 2016. He applied for reconsideration under s. 16 (1) of the EAPDA on August 23, 2016. His request was denied on reconsideration in a decision dated September 2, 2016. He then appealed to the Employment Assistance Appeal Tribunal (the “Tribunal”) under s. 16(3) of the EAPDA . The Tribunal upheld the Ministry’s decision. Mr.

Underwood now seeks judicial review of the Tribunal’s decision pursuant to the Judicial Review Procedure Act , [ RSBC 1996] c. 241 . Position of the Parties The Petitioner [ 2 ] Mr. Underwood argues that the Appeal Tribunal made three errors: 1. The Tribunal failed to follow its own procedure. 5.3 of the Tribunal Practices and Procedure provides in Written Submission: (

d) following receipt of any written submissions from the parties, the Tribunal will forward the appeal record, which includes the written submissions, to the panel for review [ 3 ] Mr. Underwood argues that this did not happen. Mr. Underwood submits that that the Ministry's submission was as follows: The Ministry has reviewed the additional information from Mr. Underwood’s physician dated August 19, 2016. Had the Ministry had this information at the time of the reconsideration decision, the Ministry may have found that Mr.

Underwood met the criteria for persons with disabilities designation. [ 4 ] He says that this submission, dated October 12, 2016 (the “October 12 th submission”), was not provided to the panel. Instead, the Ministry submitted the following by email on October 27, 2016 (the “October 27 th email”):

The Ministry’s submission in this matter will be the reconsideration

summary provided in the record of the Ministry’s decision. [ 5 ] He argues that to not use the October 12 th submission is unfair and contrary to the Tribunal Practices and Procedures

Section 5.3. 2. That the panel improperly concluded that he did not require an assistive device when his doctor stated repeatedly that he did required an assistive device. [ 6 ] Mr. Underwood argues that the Minister’s delegate concluded he did not need assistive devices. In support of this argument he cites the following from the original decision: “It is unclear as to why the applicant would need the assistive devices as the applicant’s restrictions have not been shown to be severe”.

It is his position that given his medical evidence, which states he requires a knee brace or cane, the above conclusion was unreasonable and clearly irrational. 3. Mr. Underwood argues that his doctor's second letter dated August 19, 2016 (the “August 19 th letter”) should be read to satisfy the following: i. Daily living activities (“DLAs”) in the opinion of a prescribed professional are directly and significantly restricted either continuously or periodically for extended periods; and ii. As a result of these restrictions, the appellant requires the use of an assistive device. [ 7 ] Mr.

Underwood argues first that the October 12 th submission shows that his medical evidence, when supplemented by the August 19 th letter, is sufficient to meet the requirements of s. 2(2) of the EAPDA . Secondly, he argues that the evidence of the physician must be read in its entirety and in a broad way. Any ambiguity must be resolved in favour of the applicant. The Respondent [ 8 ] The respondent makes three submissions in response: 1.

The ministry’s submission was “used” by the Tribunal and therefore they did not breach their procedures. [ 9 ] The respondent does not dispute that the Tribunal has an obligation to review the Ministry’s submissions in making a final determination. It is their position however, that the Ministry’s submission on appeal was the opinion expressed in the reconsideration

summary, not the October 12 th submission. They point to the October 27 th email in support of this argument. 2. The August 19, 2016, letter from Dr. Yue was not overlooked during the reconsideration nor the appeal. [ 10 ] The respondent submits it is clear that the August 19 th letter from Dr. Yue was considered by the Minister on reconsideration and the Tribunal on appeal. They point to Appendix A of the Reconsideration Decision which references the August 19 th letter specifically. The appeal decision November 10, 2016, also referenced this letter. As such, they submit the appeal record was not incomplete. 3.

The ministry reasonably concluded that the evidence was insufficient to establish that the appellant’s impairment significantly restricts his ability to perform DLAs. [ 11 ] On this point, the respondent argues the principal evidence before the Tribunal on the impact of Mr. Underwood’s impairment on his ability to perform DLAs was the information provided by Dr. Yue. It is their position that Dr. Yue indicated that Mr. Underwood was independent in all of the defined daily living categories except one—shopping.

There was no further evidence regarding how his medical condition affected either his ability to function on a day-to-day basis generally, or his ability to complete other daily living activities. [ 12 ] Given this lack of information, the respondent argues: [I]t cannot be said that it was “clearly irrational” on the face of the record for the Tribunal to conclude that the evidence was insufficient to establish that Mr. Underwood’s impairment significantly restricts his ability to perform his DLA.

Analysis [ 13 ] The issues in this case can be summarized as follows: (1) was the application record incomplete; and (2) was the decision of the Tribunal patently unreasonable. Standard of Review [ 14 ] The petitioner’s application to be declared a PWD was rejected at every stage of the process.

Section 58 of the Administrative Tribunals Act , S.B.C. 2004, c. 45 [“ ATA ”], provides the standard of review applicable to the Employment and Assistance Appeal Tribunal: see Ntibarimungu v. British Columbia (Minister of Social Development) , 2012 BCCA 1625 aff’d 2015 BCCA 392 [ Ntibarimungu ].

Section 58 reads: Standard of review with privative clause

58 (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1) (

a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable, (

b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and (

c) for all matters other than those identified in paragraphs (

a) and (b), the standard of review to be applied to the tribunal's decision is correctness.

(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion (

a) is exercised arbitrarily or in bad faith, (

b) is exercised for an improper purpose, (

c) is based entirely or predominantly on irrelevant factors, or (

d) fails to take statutory requirements into account. [ 15 ] Section 24(7) of the Employment and Assistance Act , S.B.C. 2002 c. 40 [the “ EAA ”], which governs the appeal at issue has a privative clause. It reads: 24

(7) A decision or order of the tribunal under this Act on a matter in respect of which the tribunal has exclusive jurisdiction is final and conclusive and is not open to question or review in any court. Therefore the decision of the Tribunal shall only be interfered with if it is patently unreasonable as described in s. 58(3) (a)-(

d) of the ATA . [ 16 ] For the reasons that follow, I conclude that the Appeal record was not incomplete, the Tribunal did not violate its own rules of procedure and that the Tribunal’s decision was not patently unreasonable. The Application Record was Complete [ 17 ] With respect to Mr. Underwood’s first argument that the Ministry’s submissions were not used by the Tribunal and therefore the appeal record was incomplete, I disagree. I understand why he is troubled by the fact that October 12, 2016, Ministry submissions he received were not considered by the Tribunal.

However, the Ministry made it clear in the October 27 th email that they would not be changing their position from the one they held at the time of reconsideration. In other words, they adopted their reconsideration reasons as their submissions on appeal. As such, the Tribunal did not need to consider the October 12 th submissions sent to Mr.

Underwood because they were not the “written submissions” of the Ministry as described in 5.3 of the Tribunal Practices and Procedure , (14 November 2017), online: <http://www.eaat.ca/the-tribunal/practices-and-procedures#sec-1-0>. [ 18 ] Additionally, the Tribunal considered the same medical evidence at the time of appeal that the Ministry considered at the time the October 12 th submissions were sent to Mr. Underwood. Those submissions were not the product of the consideration of additional evidence or argumentation not available to the Tribunal.

They merely stated that had the Ministry had the August 19 th letter when they undertook the analysis they may have considered him to have met the criteria for a PWD. It was open to the Tribunal to arrive at the opposite conclusion—that he did not meet the criteria for a PWD. The letter of October 12, 2016 was not a decision of the Ministry. [ 19 ] Given the fact that the Ministry expressly adopted its

summary on reconsideration as its submission on appeal, there was no need for the October 12 th letter to be reviewed. The Medical Evidence [ 20 ] Mr. Underwood raised several issues with respect to the medical evidence he submitted. [ 21 ] First, Mr. Underwood argued that the August 19 th letter he submitted as supplemental medical evidence was not considered by the Tribunal on appeal. I accept the respondent’s submission that the August 19 th letter was considered by the Tribunal. The Tribunal cites the letter in Part E of their decision, noting the specific conditions the doctor mentions as inhibiting Mr.

Underwood’s functioning as evidence available to them on appeal. [ 22 ] The next issue Mr. Underwood raised was with regard to the Tribunal’s conclusions on the basis of his medical evidence. He argued that it was “irrational” that the Tribunal conclude he did not need assistive devices. Respectfully, I disagree with Mr. Underwood that the Tribunal made such a conclusion.

The Tribunal stated quite clearly: Although the ministry acknowledges that the appellant uses both a cane and brace, it is a pre-condition to a person requiring help that there be a finding that a severe impairment directly and significantly restricts a person’s ability to manage his or her DLA either continuously or periodically for an extended period.

[ 23 ] The Tribunal did not conclude that he did not require assistive devices, it concluded that his condition did not significantly restrict his ability to manage at least two DLAs. [ 24 ] The final argument Mr. Underwood made was that the August 19 th letter should have satisfied the Tribunal his DLAs were directly and significantly restricted and he was therefore entitled to a PWD designation.

He challenges the Tribunal’s final decision that: Given the panel’s finding that the ministry reasonably determined that direct and significant restrictions in the appellant’s ability to perform DLA have not been established…it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions…the panel finds that the ministry’s Reconsideration Decision which determined that the appellant was not eligible for PWD designation…was reasonably supported by the evidence and a reasonable application of the applicable enactment in the circumstances of the appellant, and therefore confirms the decision. [ 25 ] Section 2(2) of the EAPDA provides when the minister may designate someone a PWD.

It reads: 2(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that (

a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (

b) in the opinion of a prescribed professional (

i) directly and significantly restricts the person's ability to perform daily living activities either (

A) continuously, or (

B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. [ 26 ] Section 2(2) of the EAPDA was discussed in Hudson v. British Columbia (Employment and Assistance Appeal Tribunal) , 2009 BCSC 1461 [ Hudson ]. In Hudson , Madam Justice Koenigsberg stated: [43] Section 2(2) of the EAPDA requires evidence from a “prescribed professional” that a severe physical impairment “directly and significantly restricts the person’s ability to perform daily living activities.” There is no indication that every one of the daily living activities listed must be affected. The ordinary meaning of the plural “activities” in this

section dictates that there must be evidence from a prescribed professional indicating a direct and significant restriction on at least two daily living activities . [ 27 ] The term “daily living activities” is defined in the Employment and Assistance for Persons with Disabilities Regulation , B.C. Reg. 265/2002 [the “ Regulations ”]. Section 2 (1) defines “daily living activities” as: For the purposes of the Act and this regulation, "daily living activities" , (

a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (

i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (

v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self care; (viii) manage personal medication, and (

b) in relation to a person who has a severe mental impairment, includes the following activities: (

i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. [ 28 ] Here, Mr. Underwood’s doctor indicated only one DLA was inhibited—i.e. his ability to “shop for personal needs”. As such, he has not satisfied the requirement that two or more DLAs be inhibited, and therefore he cannot be classified as a PWD. [ 29 ] As noted by this court in Ntibarimungu (and affirmed by the Court of Appeal), the role of this court on judicial review is not to “decide or re-decide the case” (para. 32).

The standard of patent unreasonableness requires that until “there is no evidence to support the findings”, or the decision is “openly, clearly, evidently unreasonable”, a decision cannot be said to be patently unreasonable: see Ntibarimungu at para. 38 . As was the case in Ntibarimungu , the Tribunal’s statutory role is limited to reviewing the reasonableness of the Ministry’s reconsideration. They did so.

[ 30 ] In my view, it was not patently unreasonable for the Tribunal to uphold the Ministry’s reconsideration. The medical evidence simply does not support Mr. Underwood’s position that his ability to undertake more than one DLA is restricted as a result of his condition. The Tribunal gave detailed reasons which outlined the procedural history of Mr. Underwood’s petition, the evidence available to the Tribunal on appeal, and the conclusions reached after the consideration of this evidence. I find that the Tribunal engaged in a clear analysis of whether or not Mr.

Underwood’s DLAs were restricted for extended periods of time, and whether or not these restrictions require an assistive device. After reviewing this decision I conclude that the Tribunal was justified in upholding the Ministry’s decision to withhold PWD status. Conclusion [ 31 ] Given my conclusions that the Tribunal did not breach its procedure, review an incomplete appeal record, or uphold a patently unreasonable decision, I dismiss Mr.

Underwood’s appeal on this matter. [ 32 ] I note the respondent’s submission that the Attorney General of British Columbia is not a proper respondent to the petition and that the proper Crown respondent to the petition is the Minister of Social Development and Social Innovation. The record should be amended accordingly. “B.J. Brown J.”