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After an Appeal - Reconsideration FAQs

  1. What is new evidence?
  2. For evidence to be new it must not have existed at the time your appeal was being decided or, if it did exist, you did not know about it and you would not have been able to find it if you had tried. That is to say, if the evidence existed you must show that you exercised reasonable diligence in trying to obtain the evidence before WCAT decided your appeal. For example, while an opinion from your doctor may be new in the sense that it was prepared after the date of WCAT's decision it may not be new for purposes of reconsideration if you could have obtained the same opinion during the appeal.

    New evidence must be substantial, that is, have weight and support a different conclusion. It must also be material, that is, it must be relevant to the decision. For example, a new medical opinion based on a newly introduced medical test might be new evidence, while the opinion of a new specialist confirming a medical opinion already on the file might not.

  3. What is a jurisdictional error (defect)?
  4. For purposes of a WCAT reconsideration, WCAT makes a jurisdictional error if it

    • decided a matter that it had no power to decide,
    • failed to decide a matter that it was required to decide, or
    • was procedurally unfair.

    For example, it would be a jurisdictional error if WCAT tried to make a binding decision about a residential tenancy matter as WCAT only has authority to determine appeals of workers' compensation matters. It would also be a jurisdictional error if a worker properly appealed a decision regarding a wage rate to WCAT, but WCAT failed or refused to make a decision on this issue.

    A procedural unfairness occurs when WCAT does not act fairly. Procedural fairness relates to WCAT's decision making process, not to the outcome of the appeal. For example, it would be procedurally unfair for WCAT to refuse to allow you any opportunity to make a submission in an appeal. To qualify for reconsideration because of an unfair procedure, you must show that WCAT did not act fairly in all the circumstances.

    WCAT has no power on reconsideration to address allegations that there has been a patently unreasonable finding of fact, law, or exercise of discretion.

  5. How does the reconsideration proceed?
  6. Tribunal Counsel Office will review your application to see if you have set out potential grounds for reconsideration. If you have, it will send your application to our Registry. If you were the appellant, the Registry will then invite the respondent to participate in the reconsideration even if they did not participate in the appeal. If you were the respondent, the Registry will then invite the appellant to participate in the reconsideration.

    The Registry will invite written submissions from the appellant and the respondent. Once submissions are complete, the Registry will forward your reconsideration application together with all written submissions to the panel. In most cases, the panel who decided the original appeal will also decide your reconsideration application. If the panel decides that grounds for reconsideration have been established, it will allow your application in a written decision. It may take some time for us to make a decision on this aspect of your reconsideration application because we give priority to new appeals. The panel will then rehear all or part of the appeal and issue a new decision.

    When you submit your application for reconsideration you need to address only the question of whether there are grounds for reconsideration. You do not need to address the merits of the appeal until WCAT has decided your reconsideration application and determined that the grounds for reconsideration have been met and a rehearing of all or part of the appeal is necessary. Once that decision has been made you will be given the opportunity to make submissions on the merits of the appeal. In some cases, WCAT may request submissions from you that address both aspects of the reconsideration process at the same time. In this situation, WCAT may issue a single decision addressing both issues if WCAT determines that grounds for reconsideration have been met.

  7. Can I apply for reconsideration and judicial review at the same time?
  8. Yes. You can apply for reconsideration and judicial review of the same decision at the same time. In that case, we will provide the WCAT panel with the judicial review petition and related documents, and any additional submissions you may have. The panel will consider the portions of those documents which are relevant to the reconsideration application and issue a decision. Normally, no further steps are taken in the judicial review proceeding until WCAT has issued its decision.

Workers' Compensation Appeal Tribunal. 150-4600 Jacombs Road, Richmond BC V6V 3B1 * All rights reserved.
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