Chapter 1: Introduction
- 1.1 Workers’ Compensation Appeal System
- 1.2 The Manual of Rules of Practice and Procedure
- 1.3 Role of WCAT
- 1.4 Guiding Principles
- 1.5 Administrative Law Concepts
- 1.5.1 Introduction
- 1.5.2 Jurisdiction of Tribunals
- 1.5.3 Procedural Fairness
- 220.127.116.11 The Right to be Heard
- 18.104.22.168 The Right to a Decision from an Unbiased Decision Maker
- 22.214.171.124 The Right to a Decision from the Person who Hears the Case
- 126.96.36.199 Fettering Discretion
- 188.8.131.52 The Right to Reasons
- 184.108.40.206 Failing to Decide a Matter (Missed Issue)
- 220.127.116.11 Effect of a Breach of Procedural Fairness
1.1 Workers’ Compensation Appeal System
In the province of British Columbia, the Workers Compensation Act (WCA) establishes two levels for review or appeal of decisions by officers of the Workers’ Compensation Board, operating as WorkSafeBC (Board). The first level is an internal review by a review officer of the Review Division of the Board (Review Division). The second level is an external appeal to the Workers’ Compensation Appeal Tribunal (WCAT). WCAT is headed by a chair appointed by the Lieutenant Governor in Council (the Cabinet). The Review Division and WCAT were established effective March 3, 2003. (See Appendix 1 for a short history of the workers’ compensation appeal system.)
1.2 The Manual of Rules of Practice and Procedure
This Manual of Rules of Practice and Procedure (MRPP) sets out legislation relevant to WCAT’s operation, rules of practice and procedure, practice directives, and guidelines established by the chair.
Section 11 of the Administrative Tribunals Act (ATA) and section 280 of the WCA allow WCAT to control its processes and to make rules and issue practice directives respecting practice and procedure “to facilitate the just and timely resolution of the matters before it,” the “efficient and cost effective conduct of appeals,” and the “efficient operation of the appeal tribunal.”
Rules of practice and procedure are binding, that is, WCAT must follow them. WCAT may waive or modify its rules in exceptional circumstances. In this MRPP rules are identified in bold.
Section 13 of the ATA allows WCAT to issue practice directives. Practice directives are not binding, but WCAT will usually follow them. Guidelines are also not binding. In this MRPP practice directives are identified in italics.
Rules of practice and procedure and practice directives must be consistent with the WCA and the ATA and must be accessible to the public. Both are included in Appendix 2 and Appendix 3, respectively, at the end of this MRPP.
To facilitate the just and timely resolution of appeals, WCAT may make orders related to its rules or for any matter it considers necessary to control its own proceedings. WCAT may make orders on its own initiative or on application by a party or an intervener [s. 14 ATA].
The MRPP is accessible on WCAT’s website at: www.wcat.bc.ca. From time to time WCAT will post proposed revisions to the rules, or proposed practice directives, as an “Alert” on the website and will provide an opportunity for input from the community.
1.3 Role of WCAT
Section 278(1) establishes WCAT as an external appeal body, independent of the Board. While independent, WCAT is part of the workers’ compensation system and must apply policies of the board of directors subject to the process set out in section 304 for determining the lawfulness of a policy.
1.4 Guiding Principles
WCAT will strive to provide:
- predictable, consistent, and efficient decision making;
- independent and impartial decision making;
- succinct, understandable, and high quality decisions;
- consistency with the WCA, policy, and WCAT precedent decisions;
- transparent and accountable management;
- communication within the workers’ compensation system while safeguarding WCAT’s independence;
- accountability through performance management;
- appropriate balance between efficiency (timeliness and stewardship of scarce resources) and effectiveness (quality decision making);
- prompt, knowledgeable and responsive client service;
- interpretive guidance for the workers’ compensation system.
1.5 Administrative Law Concepts
Administrative law consists of principles set out in statutes (statutory law) and described by judges in court decisions (common law) which ensure that decisions of administrative bodies, such as tribunals and government decision makers, are made fairly and within the powers granted to them by statute. Below is a brief discussion of some of the principles of administrative law.
1.5.2 Jurisdiction of Tribunals
The jurisdiction of an administrative body refers to the scope of power the legislature granted to that administrative body. The legislature may grant powers to an administrative body either in the statute that created it (the enabling statute) or in other statutes. The jurisdiction of a tribunal that decides appeals, like WCAT, is defined and necessarily implied by the powers the legislature has granted it to receive, hear, and decide appeals.
Tribunals such as WCAT, unlike some courts, have no “inherent jurisdiction.” Courts with inherent jurisdiction have broad powers which they received, both historically and constitutionally, from the common law, unless these powers are limited or taken away by statute.
Historically, the compensation of injured workers was dealt with by courts with inherent jurisdiction over personal injury law. The legislatures of the various provinces took away most of that jurisdiction and gave it to administrative bodies such as workers’ compensation boards and workers’ compensation appeal tribunals. Courts are now left with only a limited supervisory jurisdiction over these administrative bodies (20.4.3).
1.5.3 Procedural Fairness
There is a general common law principle called the duty of procedural fairness which applies to every administrative body making a decision affecting the rights, privileges or interests of an individual.
The content of the duty to act fairly in a given case, that is, what is “fair,” depends on the circumstances of the case and may vary depending on the nature of the decision in question. The more important the decision is to those affected and the greater its impact on that person or persons, the more stringent the procedural protections that will be required. Also, administrative bodies which adjudicate formal appeals, like WCAT, are generally required to adhere to particularly high standards of procedural fairness (sometimes referred to as the “rules of natural justice”).
The common law duty of fairness applies to all administrative bodies unless a statute provides otherwise, for example, if it specified that an administrative body follow a certain procedure, or the person for whose benefit a procedural rule exists waives the rule.
The duty to act fairly consists of four basic elements, which can be expressed as rights of the person whose interests are affected by a decision. The four rights are:
- the right to be heard,
- the right to a decision from an unbiased decision maker,
- the right to a decision from the person who hears the case, and
- the right to reasons for the decision.
18.104.22.168 The Right to be Heard
The right to be heard means that a person who may be directly affected by a decision has the right to receive notice that a decision may be made, the right to know what matters will be decided, and the right to be given a fair opportunity to state their case and to correct or contradict relevant statements or evidence with which they disagree. This right will usually require:
- disclosure to a party of all documents that were before the Board and, if applicable, the Review Division, at the time the appealed decision(s) was made;
- disclosure to a party of all material that is before the decision maker, whenever received by the decision maker, including any written submissions from other parties;
- an opportunity to provide submissions in relation to all disclosed material and to respond to the written submissions of other parties;
- the right to a reasonable amount of time to prepare for an oral hearing or to provide written submissions, and to be advised of any relevant submission due dates;
- the right to present evidence;
- the right to test adverse evidence (e.g. cross-examination);
- an oral hearing if the circumstances require one;
- notice of the time and place of an oral hearing, if one is held;
- the right to be present throughout an oral hearing;
- the right to obtain representation.
22.214.171.124 The Right to a Decision from an Unbiased Decision Maker
The rule against bias ensures that decisions are both fair and are seen to be fair. Accordingly, the rule applies to both actual bias and the appearance of bias.
A decision maker’s impartiality is presumed. Actual bias occurs when, for any reason, a decision maker’s state of mind prevents the decision maker from deciding the case objectively and impartially. Actual bias may arise where a decision maker may benefit from a particular outcome, where a personal or professional relationship with a party may affect the outcome, or where a decision maker has made a decision before hearing the parties.
As the rule against bias is designed to protect the public’s confidence in the integrity of the decision making process, actual bias need not be established. It is enough that there be a “reasonable apprehension of bias” on the part of the decision maker. A reasonable apprehension of bias exists if an informed, reasonable, and right-minded person would think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide the matter fairly. The onus for establishing either actual bias or the appearance of bias is on the party who makes the allegation.
The personal qualities required for appointment as a vice chair at WCAT, as set out in section 2 of the Appeal Regulation, are intended to avoid actual bias or the appearance of bias from arising in any appeal (see Appendix 4 and 2.3). Furthermore, the Code of Conduct for WCAT Members was adopted to reduce the risk of the appearance of bias arising in any appeal (21.3).
126.96.36.199 The Right to a Decision from the Person who Hears the Case
The right to a decision from the person who hears the case was traditionally formulated by the common law as “he who hears must decide.” This means that a decision maker exercising a statutory power (such as the power to hear and decide appeals) cannot delegate the power to someone else. Similarly, it is unfair if someone else, including the chair of a tribunal, instructs a decision maker how to decide a case.
This principle also recognizes the balance between safeguarding the independence of decision makers and the value of consistency in decision making. In Consolidated‑Bathurst Packaging Ltd. v. International Woodworkers of America et al,  1 S.C.R. 282, the Supreme Court of Canada concluded that this principle was not compromised when a tribunal held a full board meeting for the purpose of discussing policy issues arising from a specific case. As long as the issues of fact were not discussed at the full board meeting, the meeting was entirely voluntary, the discussion was limited to questions of law and policy, and the decision makers remained free to decide based on their conscience and their understanding of the facts and law, the practice was not unfair.
The Court also said that informal discussions with colleagues in and of themselves do not affect the capacity of panel members to decide the issues at stake independently. This principle has since been restated and applied in many court decisions.
188.8.131.52 Fettering Discretion
A corollary of the principle of “he who hears must decide” is that decision makers may not restrict, or fetter, their discretion to decide each case based on its own merits.
Traditionally, courts have found that discretion is fettered any time a decision maker decides a matter strictly on the basis of a pre‑existing policy or view without considering whether an exception needs to be made in the case. Courts have held that tribunals may adopt general policies or may be guided by policies set by external agencies, so long as those policies are not regarded as binding, inflexible rules.
Sections 339(2) and 303(2) provide that the Board and WCAT are required to consider each appeal on its own merits and justice but, in so doing, must apply a policy of the board of directors that is applicable in the appeal. The common law restriction on fettering discretion has therefore been modified for the workers’ compensation system by sections 339(2)) and 303(2). (See also s. 286(6) of the WCA.)
The common law restriction on fettering discretion has also been modified with respect to procedural matters by the ATA which gives tribunals the power to make rules with respect to their practices and procedures [s. 11(1)]. These rules must be publicly accessible [s. 11(4)] and may be waived or modified in exceptional circumstances [s. 11(3)].
The courts have recognized that the legislature may statutorily restrict or fetter the discretion of a tribunal: Yukon (Workers’ Compensation Appeal Tribunal) v. Yukon (Workers’ Compensation Health and Safety Board),  Y.J. No. 5, 2005 YKSC 5.
184.108.40.206 The Right to Reasons
In Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, the Supreme Court of Canada decided that reasons are part of procedural fairness. The courts have set aside tribunal decisions on the basis of a breach of procedural fairness where the decision maker either did not provide reasons, or provided inadequate reasons, for the decision.
WCAT is statutorily required to provide reasons [s. 306(3)], but the extent to which reasons must be given depends on the circumstances of each case. In Baldwin v. British Columbia (Workers’ Compensation Appeal Tribunal), 2007 BCSC 942, followed in Schulmeister v. British Columbia (Workers’ Compensation Appeal Tribunal), 2007 BCSC 1580, the British Columbia Supreme Court said that “reasons must be sufficient to allow the parties involved to understand the decision maker’s reasoning and to provide enough information for an appeal, if one is desired, but should not be held to a standard of perfection.” In Wyant v. British Columbia (Workers’ Compensation Appeal Tribunal), 2006 BCSC 680, the Court also held it was proper for WCAT to incorporate the reasons of both the Review Division and Board below as its own where the decision maker agreed with them.
220.127.116.11 Failing to Decide a Matter (Missed Issue)
A jurisdictional defect occurs if the tribunal does not perform the task that the relevant statute requires of it. This may occur if the decision maker fails to consider one or more of the issues that were properly before it. At WCAT this does not necessarily result in a decision being set aside. The panel retains the authority to complete its consideration of the appeal (20.1.3).
18.104.22.168 Effect of a Breach of Procedural Fairness
Failure to observe the administrative law requirements for fair procedure may result in a court setting aside, or declaring void, a tribunal’s decision and sending it back for the tribunal to reconsider after a fair hearing. Accordingly, on reconsideration of a WCAT decision, WCAT will set aside decisions of panels that are procedurally unfair (20.2.2). This authority is also recognized in the WCA [s. 307(5)].