LEVEY et al. v. FRIEDMANNLEVEY et al. v. FRIEDMANN

Supreme Court. Hinds J.

Heard-March 11-15, 1985.
Judgment – May 23. 1985.

Case Law

Note: This document comes from scanned pages. Therefore you may find some odd words here and there

Administrative law – Ombudsman – Jurisdiction – Boards or review under workers’ compensation legislation seeking injunction against investigation by Ombudsman – Ombudsman having Jurisdiction to investigate “authority” respecting “matter of administration” – Boards of review being part of administration scheme, not court boards lacking independence and impartiality – Boards not having exercise of Judicial powers as sole or central Function – Boards following changing policy directives or Workers’ Compensation Board not exclusively pre-exist principles – Application for injunction dismissed.

Workers’ compensation – Workers’ Compensation Board – Proceedings by and against board – Boards of review under workers’ compensation legislation seeking injunction against investigation by Ombudsman – Ombudsman having jurisdiction to investigate “authority” respecting “matter of administration” – Boards of review being part of administrative scheme, not court boards lacking independence and impartiality – Boards not having exercise or Judicial powers as sole or central Function – Boards following changing policy directives or Workers’ Compensation Board not exclusively pre-existing principles – Application For injunction dismissed.

Judges and courts – Definition and classifications – Courts and administrative tribunals distinguished – Boards of review under workers’ compensation legislation seeking injunction to investigation by Ombudsman – Ombudsman having jurisdiction 10 Investigate “authority” respecting “matter or administration” – Boards of review being part of administrative scheme, not court boards lacking independence and impartiality – Boards not having exercise or judicial powers as sole or central function – B following changing policy directives at’ Workers’ Compensation Beard not exclusively pre-existing principles – Application for injunction dismissed.

The plaintiff, the administrative chairman of the boards or review established under the Workers Compensation Act, and others connected with the boards of review brought action against the Ombudsman for certain declarations as to his jurisdiction with respect to the boards of review and for an injunction restraining the Ombudsman from investigating the boards or review,

Held – Action dismissed.

Under the Ombudsman Act the Ombudsman has the jurisdiction to investigate an “authority” with respect to “a matter or administration” which encompass everything done by governmental authorities in the implementation of government policy, excluding only the activities of he legislature and the courts. The boards of review should not be characterized as “courts”. Their independence is lacking in that though the government may pay the members of the boards of review, it has a statutory right to be reimbursed by the Workers’ Compensation Board out of the accident fund and the members enjoy substantially less security of tenure than that of government-appointed judges. The impartiality of the boards of review is also lacking. They became involved in inquisitorial functions and usually follow policy directives issued by lie Workers’ Compensation Board. The sole or central function of the boards of review is not the exercise of judicial powers. The statutory procedure by which the boards of review reconsider their own decision when it has not confirmed the claims adjudicator’s decision and the inquisitorial and inquiry aspects of their procedure are not in accord with the generally accepted criteria of judicial powers. The decisions of the boards of review are not invariably based on pm-existing principles but may be influenced by the decisions, practice and policy of the Workers’ Compensation Board which change from time to lime. The boards of review lack some of the trappings of a traditional court such as orders being valid and binding and the power to enforce its own orders. Accordingly. the Ombudsman has the jurisdiction to investigate or to make recommendations of reports in respect of the activities of the boards of review.

Cases considered

A.G. Que. v. Farrah [1978] 2 S.C.R. 638. 86 D.L.R. (3d) 161, 21 N.R. 595 – considered.
A.G. Que. v. Slanec 54 Que. K.B. 230 [1933] 2 D.L.R, 289 (C.A.) – considered.
B.C. Dev. Corp. v. Friedmann, [1985] 2 S.C.R. 447 [1985] I W.W.R. 193, 14 D.L.R. (4th) 129. 55 N.R. 298 (sub nom. B.C. Dev. Corp. v. Ombudsman (B.C.)) – considered.
Dupont v. Ingliss. [1958] S.C.R. 535. 14 D.L.R. (2d) 417 – considered.
Lab. Rel. Bd. (Sask.) v. John East Iron Works Ltd., [1949] A.C. 134, [1948] 4 D.L.R. 673 (P.C.) – considered.
Napoli v. W.C.B. Bourdin v. W.C.B. (1981) 27 B.C.L.R. 306, 121 D.L.R. (3d) 301. affirmed 29 B.C.L.R. 371. 126 D.L.R. (3d) 179 (C.A.) – considered.
Ombudsman Act, Re (1970). 72 W.W.R. 176. 10 D.L.R. (3d) 47 (sub nom. Re Alta. Ombudsman Act) (AIta.T.D.) – considered.
Pepita v. Doukas, 16 B.C.L.R. 120, [1980] I W.W.R. 240, 101 D.L.R. (3d) 577 (C.A.) – considered.
Residential Tenancies Act. 1979, Re. [1981] 1 S.C.R. 714, 123 D.L.R. (3d) 554. 37 N.R. 158 – considered.
Royal Aquarium & Summer & Winter Garden Soc. Ltd. V. Parkinson, [1892] I Q.B. 431 (CA.) – distinguished.
Stark v. Auerbach, 11 B.C.L.R. 355. [1979] 3 W.W.R. 563 (S.C.) – distinguished.
Trapp v. Mackie, [1979] 1 W.L.R. 377. [1979] I All E.R. 489 (H.L.) – distinguished.

Statutes considered

Canadian Charter of Rights and Freedoms. Constitution Act. 1982, Pt. 1. s. 11(d).
Constitution Act, 1867, s. 96.
Ombudsman Act. R.S.B.C. 1979, c. 306. ss. 1, 10, 11, 24.
Workers Compensation Act. R.S.B.C. 1979. c. 437, ss. 85(2). 89 [am 1983, c. 10, s. 21], 90, 91 [am. 1980 c. 36, s. 67], 93 [am. 1980, c. 36. s. 68; 1981, c. 15, s. 174].

[Note up with 9 C.E.D. (West. 3rd) Courts, 1, 2; 21 C.E.D. (West. 2nd) Workmen’s Compensation, s. 8; 1 Can. Abr. (2d) Administrative Law. IX; 21 Can. Abr. (2d) Judges and Courts, 1, 2; 38 Can. Abr. (2d) Workers’ Compensation. IV, 44]

Action for declarations concerning jurisdiction of Ombudsman and injunction restraining him front investigating boards of review.

B.W.F. McLoughlin, Q.C. and R.J. Bennett, for plaintiffs.
I.G. Nathanson and F.S. Borowicz for defendant.

(Vancouver No. A841608)

23rd May 1985. Hinds J.:-

Introduction

This action is brought against the defendant, the Ombudsman of the province of British Columbia, seeking certain declarations to his jurisdiction with respect to boards of review established under the Workers Compensation Act, R.S.B.C. 1979, c. 437, and for an injunction to restrain Dr. Friedmann from investigating the boards of review.

The plaintiff Gerald S. Levey is the administrative chairman of the boards of review; the Plaintiff A. Paul Devine is the administrative vice chairman; the plaintiffs William Beeby and Alfred W. Read are, together with Messrs. Levey and Devine, chairmen and members of individual boards of review established under the Act.

On a number of occasions in the last few years the defendant has caused investigations to be made with respect to the boards of review and he has reported the results of his investigations to the legislature in less than flattering terms. Following his appointment on 1st August 1983 as administrative chairman of the boards of review. Mr. Levey took exception to the investigations of the defendant on the basis that he had no jurisdiction to carry them out, Mr. Levey and Dr. Friedmann were unable to resolve their differences and eventually this action was commenced.

Issue

The issue to be determined is whether the Ombudsman, acting under the Ombudsman Act, R.S.B.C. 1979, c, 306, has jurisdiction to investigate the boards of review established under the Workers Compensation Act. The resolution of that issue involves the determination of the status or characterization of the boards of review as courts or as something other than courts.

EVIDENCE AND PROVISIONS OF RELEVANT ACTS

The evidence adduced on behalf of the plaintiffs consisted of a statement of facts (Ex. 1), a brief of documents (Ex. 2), a book of documents (Ex. 3) and the testimony of Mr. Levey. No evidence was presented on behalf of the defendant. Extensive arguments buttressed by numerous authorities were presented by both counsel.

Before dealing with the evidence and with the arguments of counsel. I shall set forth the provisions of the Ombudsman Act and the Workers Compensation Act which are relevant to this case.

Ombudsman Act:

In this Act “authority” means an authority set out in the Schedule and includes members and employees of the authority

10.(1) The Ombudsman, with respect to a matter of administration, on a complaint or on his own initiative, may investigate

  • a decision or recommendation made;(b) an act done or omitted; or
  • (c) a procedure used
    • by an authority that aggrieves or may aggrieve a person

      11.(1) This Act does not authorize the Ombudsman to investigate a decision, recommendation, act or omission

      (a) in respect of which here is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the ease to a court or tribunal constituted by or under an enactment, until after that right of appeal, objection or application has been exercised in the particular case or until alter the lime prescribed for the exercise of that right has expired: or
      (b) of a person acting as a solicitor for an authority or acting as counsel to an authority in relation to a proceeding

      SCHEDULE
      Authorities

      1. Ministries of the Province.

      2. A person, corporation. Commission, board, bureau or authority who is or the majority of the members of which arc, or the majority of the members of lie board of management or board of directors of which are,

        (a) appointed by an Act, minister. the Lieutenant Governor in Council;
        (b) in the discharge of their duties, public officers or servants of the Province; or
        (c) responsible to the Province. [The italics are mine.]

      Workers Compensation Act:

      85…

      (2) Decisions of the board on the Final disposition of an appeal relating to a claim for compensation, a rehabilitation expenditure or an assessment, and decisions on the content of regulations under sections 70 and 71, shall be made by a majority of the commissioners present, and for these purposes 2 commissioners constitute a quorum…

      89.(1) The Lieutenant Governor in Council shall establish boards of review each comprised of a chairman and 2 other persons. one of whom is selected for service an the boards of review after consultation with one or more organized groups of employers and one of whom is selected for service on the boards of review after consultation with one or more organized groups of workers in the Province.

      (2) The Lieutenant Governor in Council may make regulations respecting

      • the composition of boards of review;
      • the remuneration and expenses to be paid to members of the boards of review and their staff and to other persons meeting with them;
      • the practice on appeals to, and inquiries by, boards of review;
      • the duties and powers of boards of review, or any member of diem; and
      • any manner or thing that he considers necessary for the efficient operation of a board of review.
        • 90.(1) Where an officer of the board makes a decision under this Act with respect to a worker, the worker, or, if deceased, his dependants. or his employer, or a person acting out behalf of the worker, dependants or the employer, may, not more than 90 days from the day the decision is communicated to the worker, dependants or the employer, as the case may be, or within another time the board of review allows, appeal the decision to a board of review in the manner prescribed in the regulations.

          (2) Every decision of a board of review, together with its findings and reasons, shall be recorded in writing and promptly sent to the appellant and his employer or worker, or the dependants. as the case may be, and to the board.

          (3) Where the board of review does not confirm the original decision, that decision will be reconsidered by the board,

          91.(1) Where a board of review makes a decision under section 90. the worker, his dependants, his employer or the representative of any of them may, not more than 60 days after the decision is sent out, or within another period as the board may allow, appeal to the commissioners of the board

          (4) Where an appeal is taken under subsection (1), the commissioners may direct the board of review to reconsider the matter either generally or…

          MISSING TEXT

          …by the government. They are not members of the Government Employees’ Union.

          Following a decision made by a claims adjudicator, an officer o the Workers Compensation Board (“the board”), the worker (or his dependants), or his employer may. under s. 90(l) of the Act, appeal the claims adjudicator’s decision to a board of review. The evidence indicated that in 1984 the boards of review received almost 5,000 notices of appeal, they rendered approximately 4 decisions and, at the end of the year, there were about 5,000 appeals still pending. There is an obvious backlog of appeals to be heard.

          The appeals are heard by two means. One means is by way of a “read and review”, by which is meant, according to the evidence of Mr. Levey, that a board of review reads the file of the worker, reads written submissions, if any, and then renders a written decision. The other means is by way of an oral hearing before a board of review, following which a written decision is rendered. The average time from the receipt of a notice of appeal to the rendering of a decision in a “read and review” case is 7.6 months. The average time from the receipt of a notice of appeal to the rendering of a decision on an appeal dealt with by a hearing held outside of the lower mainland area is 17 months. If the hearing is held within the lower mainland area the average time is greater: it is 19.6 months.

          Most of the investigations conducted by the defendant related to complaints of inordinate delays on the part of the boards of review in hearing and dealing with various appeals.

          The defendant’s reports to the legislature for the years 198 I. 1982 and 1983. Filed under s. 24 of the Ombudsman Act, reveal the Following with respect to the boards of review:

          Year Complaints Withdrawn declined, discontinued, or not substantiated Investigated
          1981 46 34 12
          1982 58 52 6
          1983 51 40 1

          BASES FOR CHARACTERIZATION OF A TRIBUNAL

          Counsel for the plaintiffs sought to establish that the boards of review are “courts” on a number of bases. I shall consider them.

          1. Labels
          2. A label is not significant in determining whether a particular tribunal is a “court”, Counsel for the defendant conceded that point and I shall not consider it further.

          3. Section 11(d) of the Charter of Rights and Freedoms
          4. That section provides:

            11. Any person charged with an offence has the right…

            (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

            Counsel for the plaintiffs submitted that the use of the word “tribunal”, rather than the word “court”, indicated that the former has greater significance than the latter. That may be so, but I do not consider that s. 11(d) has any relevance to this case because it refers to “any person charged with an offence”. No person is charged with an offence when appearing before a board of review.

          5. Comments of Lord Denning
          6. Counsel referred to comments concerning the independence of judges, magistrates and others who exercise judicial function, made by Lord Denning in his books, The Changing Law, and Freedom under the Law (1949). The opinions expressed in books written by such a distinguished judge are deserving of great respect but they do not constitute binding authority. It is beyond dispute that judges, magistrates and others who exercise judicial function should be independent. But the need for independence does not necessarily enable one to characterize a tribunal having some judicial function as a “court”.

          7. “Courts” as considered in the law of libel and slander
          8. In his written argument counsel for the plaintiffs stated:

            In the law of defamation, it has long been the law that defamatory Statements made in the course of proceedings before a Court. or before a Tribunal acting in manner similar to a court, are subject to absolute immunity from liability.

            In support of that statement, which I consider to be a correct statement of the law, he cited Royal Aquarium & Summer & Winter Garden Soc. Ltd. v. Parkinson, [1892] Q.B. 431 at 442 (C.A.); Trapp v. Mackie, [1979] W.L.R. 377, [1979] 1 All E.R. 489 (H.L.); and Stark v. Auerbach, 11 B.C.L.R. 355, [1979] 3 W.W.R. 563 (S.C.). The latter case dealt with an alleged libel contained in a written decision of a board of review established under the Act. Legg J. found that the questioned statement was absolutely privileged on the basis that the function of a board of review in making a written decision was similar to the function of a court in reaching a decision. It is to be noted that Legg J. did not characterize a board of review as a “court”; he equated the decision-making function of the tribunal there in question – a board of review – to that of a court of justice. Because a tribunal may act in a manner similar to a “court”, thereby giving its proceedings absolute immunity from liability for defamation does not necessarily make such tribunal a “court” for all purposes. Other aspects of the tribunal must be considered. The authorities referred to by counsel for the plaintiffs under this branch of his argument are not determinative of the issue to be decided in this case.

          9. Section 96 courts
          10. Counsel for the plaintiffs cited a number of authorities dealing with whether a tribunal established by a provincial legislature was in fact a “court” which purported to deal with matters reserved to federally appointed courts under s. 96 of the Constitution Act, 1867 (formerly known as the British North America Act, 1867). They included the following: A.G. Que. v. Slanec, 54 Que. K.B. 230, [1933] 2 D.L.R. 289 (C.A.), Lab. Rel Bd. (Sask.) v. John East Iron Works Ltd., [1949] A.C. 134, [1948] 4 D.L.R. 673 (P.C.), Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, 123 D.L.R. (3d) 554, 37 N.R. 158, Dupont v Ingliss, [1958] S.C.R. 535, 14 D.L.R. (2d) 417, A.G. Que. v. Farrah, [1978] 2 S.C.R. 638, 86 D.L.R. (3d) 161, 21 N.R. 595, Pepita v. Doukas, 16 B.C.L.R. 120. [1980] 1 W.W.R. 240, 101 D.L.R. (3d) 577 (C.A.).

            Those cases are helpful in that they demonstrate that a “court” bases its decision on pre-existing law, whereas a non-judicial tribunal bases its decision on policy and expediency. A tribunal may have several functions. It is necessary to look at the totality of its functions in order to determine its characterization. Lambert J.A. put it this way in Pepita v. Doukas, supra, at p. 583:

            It is not sensible to consider a tribunal apart fro its functions, It may hove only one function, If it is a full Superior Court then it will have many. The tribunal may have judicial functions, it may have administrative functions, or it may have any combination of those functions. If it has judicial functions then it is, at least in part, a Court. The judicial functions may be those exercised at the time of Confederation by magistrates or other tribunals that were not then considered to be s. 96 Courts, or they may be those exercised exclusively at Confederation by s. 96 Courts, or they may be functions exercised partly by s. 96 Courts and partly by other tribunals at the time of Confederation, or, finally, they may be judicial functions that were not known or not exercised at the time of confederation Of course, one tribunal can be given any or all of the – four categories of judicial functions that I have mentioned. It may have those functions alone or it may have them in combination with any range of legislative or administrative functions. Each of its Functions should play a part in revealing the social purpose which led to the endowment of the tribunal with the function. In my opinion, therefore, the totality of the functions must be considered in order to reveal the nature of the tribunal and its social purpose. It may be that other matters are also relevant to the institutional arrangements, as, for example, the body of law on which the tribunal may be required to adjudicate, and the decrees of other entities that it may be required to administer.

            I shall later consider whether the dominant and significant function of the boards of review is clearly to act as a judicial tribunal, i.e., a “court”.

          11. Australian jurisdiction cases
          12. Counsel for the plaintiffs referred to a number of Australian authorities which emphasized the difference between judicial power and power in the exercise of which there is a duty to act judicially. Under the former, the person exorcising the judicial power determines the issues on the basis of already existing legal rights. Under the latter, the person may determine the issues on the basis of new legal rights or duties created in the exercise of discretion in furtherance of a perceived policy. The Australian authorities are helpful in delineating the difference between the function of a court and the function of a tribunal which is not a true court, but they are not determinative of the issue to be decided in this case. I say that because, in my view, it is necessary to scrutinize the functions and characteristics of the boards or review in order to determine whether they should be characterized as “courts”, or as something other than “courts”.

          13. Characteristics of a court
          14. Characteristics of a court can be divided into two broad headings: first, essential characteristics and, second, trappings.

            Under the heading of essential characteristics, there are a number of criteria, including the following:

            • Independence
            • Unquestionably, one o. the hallmarks of a court is independence. in some respects the boards of review do have a measure of independence, but in other respects I find their degree of independence is somewhat lacking.

              The chairmen and members of the boards of review are appointed by the Lieutenant Governor in Council, not by the board: see s. 89(1) of the Act. They are appointed to a full-time position. However, they are appointed for only an indeterminate period of time. Their security of tenure is substantially less than that accorded to federally appointed judges or to provincially appointed judges.

              The boards of review are paid by 11w provincial government: see s. 93(1) of the Act. However, that apparent separation from the board is illusory in light of the combined effect of the provisions of s. 93(1) and (2). Those subsections provide that, upon request, the board shall, out of the accident fund, reimburse the government for all moneys paid by it for the administration and operation of the boards of review. Accordingly, while the government may pay the members of the boards of review, it has the right to be reimbursed by the board out of the accident fund.

              Much was made by counsel for the plaintiffs that their offices are no longer located in the same building as the board. The impact of that physical separation from the board was somewhat lessened when it was acknowledged by Mr. Levey that the boards of review are presently located in a building in Burnaby which accommodates numerous other provincial government agencies.

            • Impartiality
            • It, too, is a hallmark of a court. I accept the evidence of Mr. Levey that the boards of review are impartial – impartial within the framework of their delegated responsibilities. However, it is noted that under s. 89(2)(c) of the Act, the Lieutenant Governor in Council may make regulations respecting “…inquiries by, boards of review”. On the evidence of Mr. Levey, it is apparent that pursuant to regulations boards of review do, on occasion, make inquiries of medical practitioners and others. In so doing, it appears that boards of review become involved in inquisitorial functions which are not a normal hallmark of common law courts. Moreover, the evidence of Mr. Levey indicated that the boards of review interpret and usually follow policy directives issued by the board. Accordingly, the impartiality of the boards of review, looked at objectively. may be open to some question.

            • Sole or central function – exercise of judicial powers
            • It was strongly asserted by counsel for the plaintiffs that the sole and central function of the boards of review was the exercise of judicial powers. Many of the authorities to which he referred indicated that this is the most important element in determining the characterization of a tribunal as a “court” or as a tribunal other than a “court”.

              The foregoing invites consideration of the function fulfilled by the boards of review in the overall scheme of the appeal procedures provided by the Act.

              A useful analysis of the general scheme of the Act with respect to a claim by a worker for compensation, how a claim is dealt with, how it may be appealed, and how it is finally determined is to be found in Napoli v. W.C.B.; Bourdin v. W.C.B. (1981), 27 B.C.L.R. 306, 121 D.L.R. (3d) 301 at 317 (S.C.).

              Alter a claims adjudicator, who is an officer of the board, makes a decision, the worker or, if he is deceased, his dependants, or his employer, may appeal the decision to a board of review: see s, 90(l) of the Act. A board of review will then hear the appeal by means of a ‘read and review” or by means of an oral hearing. In due course the board of review is obliged to render its written decision. It is sent to the worker or his dependants, as the case may be, to his employer, and to the board: see s. 90(2) of the Act. Then, a curious thing occurs. If the board of review does not confirm the claims adjudicator’s decision, the decision of the board of review is reconsidered by the board: see s. 90(3). M Levey testified that in practice the board seldom reconsiders a board of review decision which does not confirm the earlier decision of the board’s own officer – the claims adjudicator. It seems that in practice it is the claims adjudicator who decides whether the contrary decision of the board of review should be referred to the board for reconsideration. While the provisions of s. 90(3) of the Act may seldom be adhered to, it is, nevertheless, a procedure clearly required by the statute. It is a procedure which (is not in accord with the generally accepted criteria of judicial powers.

              Apart from the powers of the board to reconsider a decision of a board of review under s. 90(3) there are the general appeal provisions contained in s. 91 of the Act. It is noted that a worker, his dependants or his employer may appeal the decision of a board of review to the commissioners of the board. Under s. 91(4) the commissioners may direct the board of review to reconsider the matter either generally or on a particular issue and, moreover, they may withhold making their decision pending the further decision of the board of review, The provisions of s. 91(4) tend to further emphasize the inquisitorial inquiry, or review aspects of the boards of review, rather than the exercise of judicial powers.

              On the evidence submitted, and in view of the provisions of ss. 90(3) and 91(4) of the Act, 1 I am not satisfied that the sole and central function of the boards of review is the exercise of judicial powers.

            • Application of pre-existing principles
            • One of the indicia of a “court” is that it applies pre-existing principles in determining the rights and liabilities of persons appearing before it. It does not base its decision on policy or expediency. It was argued that the boards of review rely only on pre-existing principles and do not render decisions based upon policy or expediency. That may be so, but it is necessary to examine the origin of the pre-existing principles upon which the boards of review rely.

              Under s. 89 of the Act the Lieutenant Governor in Council is given power to issue regulations respecting the boards of review: see, in particular, s. 89(2)(c), (d) and (e) of the Act. Those provisions are unremarkable.

              However, in Ex. 2, tab. B1, decision No. 60 of the board is reproduced. It states, in part, as follows:

              The Act authorizes the Board to issue rules, regulations, orders and directives for the due administration of Part I, and confers upon the Board exclusive jurisdiction to interpret Part I or the Act. These rules, regulations, orders and directives are promulgated by the Commissioners, and together with the interpretations and decisions of the Commissioners on appeals, they constitute the working rules of the system. These rules are reviewed from time to time by the Commissioners, and are of course subject to change by the Legislature. But they are clearly binding on the boards of review. [The italics are mine.]

              In Ex. 2, tab. B4, decision No. 196 of the board is reproduced. It states, in part, as follows:

              The policy of the Commissioners has been only to alter board of review decisions when they an not “within the range of legally permissible conclusions.” In this regard, however, it should be noted that the power of substitution on matters of right which is enjoyed by the boards of review is “subject to the terms of the Act and the decisions and practice established by the Commissioners… (Decision No. 60 W.C.R. 252). Consequently, it is not a legally permissible conclusion on the part of the board of review to deviate from existing Board policy as established by the Commissioners or to initiate or originate policy.

              In his testimony Mr. Levey took issue with the foregoing extract from decision No. 196. He maintained that the legislature, not the board, established the limits of the jurisdiction of the boards of review. He acknowledged, however, that his disagreement with the board concerning decision No. 196 had not been tested in court. I conclude that, while the boards of review may not themselves originate policy, they nevertheless, in reaching a decision, are influenced by the decisions, practice and policy established by the board. The decisions, practice and policy of the board change from time to time. To some degree, therefore, the decisions of the boards of review are not based upon pre-existing established principle.

            • A lis inter partes
            • Another hallmark of a “court” is the existence of a lis or dispute between the parties. Whether the lis before a board of review is between a worker and the board, as found by Bouck J. in Napoli v. W.C.B., supra, or whether it is between a worker (or his dependants) and his employer, as suggested by counsel before me, is unnecessary to decide. I am satisfied that in the proceedings before a board of review there is indeed a lis.

              The second broad heading of characteristics of a “court” involves trappings. They are less important than the first heading, essential characteristics, but nevertheless may be of some significance in attempting to characterize the functions of a tribunal.

              There are a number of features which have been recognized as trappings of a court, In my view, the boards of review possess the following trappings: the power to compel the attendance of witnesses and the production of documents; the power to take evidence on oath; procedural rights to the parties to the lis, including the right to notice, to open hearings, to present evidence, to cross-examine, to be represented by counsel, to make submissions, and to the receipt of reasons in writing; the weighing of evidence; the right to appeal to a superior body (the commissioners); and the proceedings are privileged with respect to libel and slander.

              There are other recognized trappings of a “court”, which I do not consider the boards of review possess or, if they are possessed, they are limited in their extent. They include the trappings of orders being valid and binding, and the power of the tribunal to enforce its orders.

              In view of the provisions of s. 90(3) of the Act, it cannot be said that all of the decisions of the boards of review are valid and binding. Those decisions of a board of review which fall within the purview of that section are subject to reconsideration by the board. Moreover, the boards of review have no power to enforce their decisions and there are no provisions in the Act whereby the decisions of the boards of review may be filed in the Supreme Court, or in any other court, for purposes of enforcement.

              As a result of the foregoing analysis, I conclude that some of the bases upon which a tribunal can be characterized as a “court” are met by the boards of review. However, some of the bases are not met by the boards of review. Their independence and impartiality are somewhat lacking. Their sole or central function is not the exercise of judicial powers. They do not invariably base their decisions upon pre-existing principles. They lack some of the trappings of a traditional court.

              In my view, the boards of review are an administrative tribunal, a domestic tribunal, within the framework of the Act. They form part of an administrative scheme for the compensation of workers injured in the course of employment which is covered by the Act. For the purpose of investigation under the Ombudsman Act, they are not a “court” in the sense that the word was used by Dickson C.J.C. in the B.C.D.C. case.

              Conclusion

              Boards of review are an “authority” within the meaning of s. 1 of the Ombudsman Act. Under that Act the Ombudsman has the jurisdiction to investigate an “authority” with respect to “a matter of administration”. The Supreme Court of Canada in the B.C.D.C. case defined that phrase to encompass everything done by governmental authorities in the implementation of government policy, excluding only the activities of the legislature and the courts. I have found that the boards of review should not be characterized as “courts”. Accordingly. I conclude that the defendant had the jurisdiction, and continues to have the jurisdiction, to investigate or to make recommendations or reports in respect of decisions, recommendations, acts, omissions and procedures of boards of review subject, however, to the provisions of s. 11(1) of the Ombudsman Act.

              The plaintiffs’ action is dismissed, with costs.

              Action dismissed

Forum of Canadian Ombudsman