A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair

As a general rule, an order made in the absence of a party who has an acceptable explanation for their non-attendance at a hearing will amount to a breach of procedural fairness. However, this general rule does not apply where a party deliberately, willfully, and without valid excuse fails to attend a hearing.

Administrative law – Judicial review – Procedural requirements and fairness – Appeals; Hearings – Failure to attend a hearing; Workers’ compensation

Baun v. British Columbia (Workers’ Compensation Appeal Tribunal), [2024] B.C.J. No. 921, British Columbia Court of Appeal, May 22, 2024, L. Marchand C.J.B.C., J.C. Grauer and K. Horsman JJ.A.

The appellant was injured in the workplace in October 2012. The Workers’ Compensation Board (“WCB”) accepted that the appellant suffered compensable workplace injuries. However, the appellant disagreed with the WCB’s assessment of the nature and extent of her injuries, when the injuries resolved, and the appellant’s entitlement to reimbursement for certain expenses. The appellant engaged in protracted proceedings before the WCB and the Workers’ Compensation Appeal Tribunal (“WCAT”), culminating in the appellant filing three petitions for judicial review in the British Columbia Supreme Court.

WCB and WCAT filed applications to strike the petitions pursuant to Rule 9-5(1) and set the applications down for hearing during the assize week in January 2019. The appellant advised she was not available until after February 2019. WCB and WCAT re-set the applications for hearing during the assize week of May 6, 2019. The appellant then advised WCB and WCAT that she was unavailable for the month of May.  WCAT and WCAT refused to adjourn the applications further without an explanation as to why the appellant was unavailable.

The appellant did not attend the May hearing. Trial scheduling unsuccessfully attempted to contact the appellant by telephone. The chambers judge reviewed the affidavit evidence and concluded from the correspondence that the appellant knew the matter was set for hearing. The chambers judge held that the appellant’s suggestion that she was not available for the month of May was disingenuous; the appellant’s conduct indicated the appellant would attend court when she was seeking orders, but not attend court when attending would not further her cause. The chambers judge held the appellant’s conduct showed the appellant thought WCB and WCAT needed her permission to proceed with their applications, and that she could dictate the process. The chambers judge held that the appellant’s non-attendance was deliberate, willful, and without a valid excuse. 

The full day hearing proceeded, and the chambers judge determined WCB’s and WCAT’s applications to strike the petitions on the merits. The chambers judge granted orders dismissing the appellant’s petitions. The chambers judge held the appellant’s petitions were “long, rambling, and incoherent”. They were mostly “allegations without substance or without evidentiary foundation”.  The chambers judge further held that the appellant misapprehended the role of the court on judicial review. The appellant was simply seeking to reargue the case decided by WCB and affirmed by WCAT, and to substitute the medical findings made in those proceedings. 

The Court of Appeal heard an appeal from the dismissal of two of the three petitions.

The appellant’s grounds of appeal included that she had not been accorded procedural fairness and that the chambers judge made various errors in his reasons.

With respect to procedural fairness, the appellant argued she had not been personally served with the requisition resetting the hearing date and, therefore, did not have notice of the hearing. The Court held that the appellant had, in fact, received notice of the hearing date. Further, the Court held there was no basis to interfere with the chambers judge’s finding that the appellant’s non-attendance was deliberate and willful and without a valid excuse.

The Court held that, as a general rule, an order made in the absence of a party who has a valid explanation for their non-attendance will amount to a breach of procedural fairness. However, in the present case the appellant never provided an acceptable explanation for her non-attendance. The general rule has no application in this context. A deliberate decision to not attend a hearing does not render the hearing procedurally unfair.

The Court of Appeal also upheld the chambers judge’s dismissal of the petitions, finding that the appellant was attempting to circumvent the specialized appeal structure under the Workers’ Compensation Act and engage the Court in directly supervising the WCB and its advisors.

This case was digested by Emilie LeDuc of Harper Grey LLP and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].