Three Strange Things about Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 does little or nothing in the way of doctrinal development, and so should not be expected to have a lasting impact on the law. Three aspects of this Supreme Court of Canada decision are nonetheless worth highlighting in an effort to explain why Martin is best confined to its special facts.

The case concerned the relationship between federal and provincial workers' compensation legislation. Federal law provides (in egalitarian spirit) for federal workers to be compensated for workplace injuries "at the same rate and under the same conditions" as those prevailing under provincial law.

Unfortunately for M -- a federal worker -- his claim was denied on the basis of a policy developed by the Board under provincial statutory authority. Naturally, he argued that the  federal statute, more favourable to him than the provincial policy, should prevail. His argument was rejected by a unanimous Court in a set of reasons by Karakatsanis J., reasons which had the following strange aspects.

First, the approach to reasonableness review. Karakatsanis J. noted that a deferential standard of review was appropriate (para. 11) but rather than starting from the premise that the policy should be upheld unless unreasonable, she analyzed the statutory texts and legislative purpose to conclude "the Commission was required to apply provincial law and policy to determine the entitlement to and rate of compensation for" M (at para. 18). She conducted a similar analysis to conclude that the provincial policy was "not inconsistent" with federal law (at para. 49). In other words, she measured the policy against the benchmark established by her reading of the relevant statutory provisions.

No mention was made at either stage of the reasons offered by the Board to justify its policy. On this approach, there is no distinction at all between an administrative decision that is "correct" and one that is "reasonable". This is wrongheaded and suggests to lower courts that they must always engage in an independent analysis of the statute before determining the merits of a judicial review claim. 

Second, the treatment of the Board's policy. Recently, the Court did not apply a standard of reasonableness to a set of regulations issued under statutory authority by a provincial cabinet. Here, Karakatsanis J. simply assumed that the appropriate standard was reasonableness (at para. 11). She also applied a standard of reasonableness to the application of the policy to M, although interpreting an administrative policy is distinct from interpreting a statute and may be thought to raise different concerns.

Third, a constitutional issue was sidestepped. Consider this comment at para. 39:

Where a direct conflict between the provincial law and the GECA exists, the GECA will prevail, rendering that aspect of the provincial law or policy inapplicable to federal workers. Otherwise, the provincial workers’ compensation scheme prevails.  In either case, provincial boards and authorities will be responsible for adjudicating the claim.

That a "direct conflict" with federal law makes provincial law inapplicable is Federalism 101. But in determining whether there is a conflict, Karakatsanis J. insisted that the standard of review was reasonableness (at para. 11). In other words, the constitutional division of powers is not to be safeguarded rigorously by courts, but left to administrative decision-makers, as long as their decisions are reasonable. One can agree or disagree with this result, but it deserved attention.

Perhaps the bottom line in respect of Martin is that it addressed a potentially tricky issue at the boundary of administrative law and constitutional law, an issue that the Court had no desire to address in the context of this case. For it is possible that M would have lost regardless of the applicable standard, such that a sustained discussion of reasonableness and federalism was unnecessary and the tricky constitutional issue is left for another day. This would explain Karakatsanis J.'s detailed statutory analysis which leaves the distinct impression that the Board was correct in all respects and the unfortunate impression that this is the proper way to conduct reasonableness review.

Hence why I think Martin should be limited to its particular facts.