A decision of the appeal tribunal, constituted under the Yukon Workers’ Compensation Act, to disclose the entire file of the worker to her employer was quashed as the tribunal erred in law in its consideration of the notion of “relevance” resulting in an order which was unreasonable

Administrative law – Judicial review – Decisions reviewed – Workers Compensation Boards – Disclosure – Relevance of information disclosed – Standard of review – Reasonableness simpliciter

O’Donnell (Re), [2004] Y.J. No. 76, Yukon Territory Supreme Court, July 19, 2004, Veale J.

An appeal tribunal appointed under the Yukon Worker’s Compensation Act, R.S.Y. 2002, c.231, ordered, on the basis of relevancy, that the worker disclose her entire file to her employer at a hearing to determine whether the worker had suffered a work-related disability. The worker applied for judicial review of the decision of the appeal tribunal on the ground that it had erred in law.

In determining the standard of review, the court noted the four factors that are to be considered: (1) the presence or absence of a privative clause; (2) the expertise of the tribunal; (3) the purpose of the governing legislation as a whole and the provisions creating the tribunal and its role; and (4) the nature of the problem, whether a question of fact, mixed fact and law, or law.

The court held that a standard of reasonableness should be applied to the tribunal’s decision. Although the appeal tribunal had no special expertise in matters of law, the statute empowered the tribunal to make decisions on the relevancy of documents. The Act did not permit an appeal of the decision of the appeal tribunal but rather a judicial review, indicating that some deference should be given to appeal tribunal decisions.

The court noted that an employer was entitled to receive information on a claim that was relevant to any issue under review. Hence, the determination of relevancy by the appeal tribunal required an assessment of the issue or the facts in dispute and the connection of that information to the information in the worker’s file. However, the appeal board’s decision did not state with any precision the issue or factual dispute before the tribunal as a reference point for a determination of relevancy. Nor did the decision disclose the nature of the information or documents in the worker’s claim file. The appeal board also erred in trying to balance the privacy rights of the worker with the employer’s need for full disclosure. The goal of full disclosure was limited by the concept of relevancy, not privacy. The court had considerable doubt that the appeal board applied the proper test for relevancy. The decision was therefore quashed as being erroneous in law and unreasonable.

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