Executive Summary: Key Legal and Evidentiary Issues

• Whether WCAT had jurisdiction under section 311 of the Workers Compensation Act to certify a private arbitration as a court proceeding.

• Interpretation of “court” and “action” under the WCA and their applicability to arbitrators and arbitration.

• Dispute over whether a breach of contract claim includes a personal injury element justifying WCAT involvement.

• Analysis of whether early judicial review is premature given the Tribunal's two-stage process.

• Petitioner’s claim that the Tribunal's jurisdictional ruling was final and thus eligible for immediate review.

• Court’s discretion to stay administrative proceedings pending judicial review where statutory jurisdiction is contested.

Facts and outcome of the case

Dr. Aref Tabarsi Inc., a medical corporation, entered into a contract in 2020 with the Vancouver Island Health Authority (VIHA) to provide clinical pathology services. Dr. Tabarsi, acting through his corporation, alleged that VIHA failed to provide a safe work environment due to the abusive conduct of another physician. The situation caused Dr. Tabarsi to step away from work and eventually led to the non-renewal of the contract in 2021. In response, Dr. Tabarsi Inc. filed a notice to arbitrate in May 2023, seeking damages for breach of contract, moral damages related to mental distress, and punitive damages.

In response to the arbitration, VIHA applied to the Workers’ Compensation Appeal Tribunal (WCAT) under section 311 of the Workers Compensation Act (WCA), seeking a certification that the dispute involved a personal injury arising in the course of employment. WCAT issued a jurisdictional decision on July 31, 2024, concluding it had authority to certify the arbitration proceeding based on two findings: that “court” and “action” under the WCA include arbitration and arbitrators, and that the arbitration included claims based on personal injury. Dr. Tabarsi Inc. challenged this ruling through a petition for judicial review.

VIHA attempted to strike the judicial review as premature, arguing that it should proceed only after WCAT completed the full certification process. Dr. Tabarsi Inc. simultaneously applied to stay the WCAT proceeding until the judicial review was resolved. The Court heard both applications in April 2025.

Justice Giltrow ruled in favor of Dr. Tabarsi Inc. on both fronts. First, the Court dismissed the motion to strike the judicial review. It held that WCAT’s jurisdictional decision was a final decision under section 309 of the WCA, meaning there was no other internal mechanism for review within the tribunal’s framework. The Court emphasized that this was not a preliminary procedural step but a substantive decision on WCAT’s jurisdiction, and thus fit for immediate judicial review.

Second, the Court granted a stay of the WCAT proceedings pending judicial review. Applying the RJR-MacDonald test, the Court found that there was a serious issue to be tried—namely, whether WCAT had jurisdiction over arbitration under the WCA. It also concluded that delaying the WCAT process could prevent unnecessary expenditure of time and resources, particularly if WCAT was ultimately found to lack jurisdiction.

Costs were awarded to the petitioner, Dr. Tabarsi Inc., in the cause, meaning they will be determined following the outcome of the judicial review. No damages were awarded, as this was a procedural matter related to administrative law rather than a decision on the merits of the underlying contract dispute.