Chapter 17: WCAT Decision Making
- 17.1 Time Frame for Decision Making
- 17.2 The Written Decision
- 17.3 Reasonable Apprehension of Bias and Conflict of Interest
- 17.4 Appeal Outcome
- 17.5 Notice of Decision
Any decision or action of the chair or of a panel under Part 4 is final and conclusive and is not open to question or review in any court [s. 309(1)]. The Board must comply with a final WCAT decision on an appeal [s. 309(3)].
17.1 Time Frame for Decision Making
WCAT must make its decision within 180 days after receiving a copy of the Board’s records [s. 306(4)(a)]. The 180‑day time frame is subject to:
- a suspension of the appeal on statutory grounds (8.4 to 8.4.4);
- an extension by the chair if the complexity of the proceedings or the matter under appeal makes the time period impracticable [s. 306(5(a)] (17.1.2);
- an extension where the appellant requests a delay to submit new evidence or make additional submissions [s. 306(5)(b)] (13.1 to 13.1.4);
- an extension where the respondent requests a delay to submit new evidence or make additional submissions [s. 306(7)] (13.1.2 to 13.1.4);
- a shorter time period being prescribed by the Cabinet [s. 306(4)(b) (Note: Cabinet has not provided a regulation to shorten this time.)].
The chair may extend the time frame even if the applicable time period has expired [s. 306(8)].
The 180‑day time frame for decision making applies to all appeals brought under sections 288 and 289. It does not apply to other types of applications such as extensions of time to appeal, reconsiderations, or certifications to the court under section 311.
17.1.2 Extension of Time for Complexity
The chair may extend the time frame where the complexity of the proceedings in the appeal or the matter under appeal makes the time frame impractical [s. 306(5)(a)]. Complexity of the proceedings concerns the procedural steps in the appeal; complexity of the matter concerns the issues or subject matter of the appeal.
17.2 The Written Decision
17.2.1 Hallmarks of Quality Decision Making
A good decision:
- clearly identifies the issues at the outset;
- identifies a clear set of relevant findings of fact fairly drawn from the evidence;
- where there is conflicting relevant evidence, explicitly identifies the findings of fact on which the conclusion is based and the reasons for the findings of fact, that is, why some evidence was preferred over other evidence;
- responds to the relevant submissions and arguments;
- identifies and applies relevant law and policy, including WCAT precedent panel decisions;
- strives to be consistent with the general approach in other WCAT decisions affecting similarly situated parties and issues, or provides a rationale for not being consistent with other WCAT decisions affecting similarly situated parties and issues;
- uses plain language where possible and uses technical and legal terminology in a manner consistent with other decisions;
- makes the panel’s reasoning clear and understandable and leads to a logical conclusion that resolves the issues; and,
- is written without identifiers, as provided in 19.2.
17.2.2 Decision-Making Principles
WCAT seeks to provide a decision-making process which is demonstrably fair, efficient, and accessible. WCAT aims to provide well-reasoned and high quality decisions which clearly explain the basis for the conclusion reached. Clarity, consistency, and predictability are key values.
It is important that both the procedures followed by a WCAT panel in hearing a case, and the reasons provided by the panel to explain its decision, are seen to be fair and independent. Even where a party does not obtain the result they sought, it should be evident to the party that, in reaching its decision, the panel followed a fair process in which the parties were heard, and provided reasons which explain the basis on which the decision was made (including reasons for any dissent).
A final decision on an appeal must be made in writing with reasons [s. 253(3)]. All members of the panel that made the decision will sign the decision either manually or electronically. Written reasons will be provided for any dissent, signed by the panel member. WCAT decisions will be written in clear terms, using plain, direct language where possible. Short and concise decisions will be provided where possible. A decision will focus on the issue(s) under appeal, and need not recite the background evidence in detail.
WCAT must not fetter a discretion conferred on it under the WCA and policy. However, taking into account individual circumstances and providing a decision according to the merits and justice of the case under section 303 does not mean that the panel’s focus is solely on the individual case. A decision must also be consistent with the WCA, policy, and WCAT precedent decisions.
The legislature has taken specific measures to promote consistency and predictability. These include sections 303(2) and 251 concerning the binding nature of policies of the board of directors, and section 303(3) concerning the binding nature of WCAT precedent panel decisions. Having regard to this legislative intent, WCAT will recognize consistency and predictability as important values in adjudication.
18.104.22.168 Disclosure of Prior Decisions
Panels may refer to past Review Board, Appeal Division (www.worksafebc.com), WCAT (www.wcat.bc.ca), or former commissioners’ decisions without first disclosing those decisions to the parties and inviting further submissions as long as they are accessible on an internet website or published in the Workers’ Compensation Reporter (www.worksafebc.com). If a WCAT panel wishes to cite a decision which was not publicly accessible at the time of the oral hearing, or when the parties were providing their written submissions, the panel will disclose the prior decision for comment. Panels may also invite comments concerning a publicly accessible decision.
17.3 Reasonable Apprehension of Bias and Conflict of Interest
17.3.1 Reasonable Apprehension of Bias
Members must exercise their duties and responsibilities in a neutral, impartial manner. Parties have the right to have their appeal heard by an impartial and unbiased decision maker who has not prejudged the issues and who does not have a predisposition in favour of one or the other side. This is known as the “rule against bias.”
Since justice must not only be done, but must also be seen to be done, a member should not hear an appeal if there is a significant appearance (reasonable apprehension) that they are biased, even if they do not believe that they are biased. No member should hear an appeal if they have a personal interest in or may benefit from the result. Nor should a member hear an appeal if a reasonable and informed person looking at the situation would assume that the member would probably be biased.
For greater certainty:
- “actual bias” occurs when a member has a personal interest (either pecuniary or non-pecuniary), relationship or association (past or present) that impairs the member’s ability to discharge their duties fairly and impartially;
- a “reasonable apprehension of bias” occurs when a reasonable and informed person looking at the situation would assume that a personal interest (either pecuniary or non-pecuniary), relationship or association (past or present) impairs the member’s ability to discharge their duties fairly and impartially.
It is the responsibility of each member to actively inquire into and consider any circumstance which might raise a perception of bias regarding any of the member’s responsibilities. On recognizing a possible issue of bias, the member should consider whether it would be appropriate to withdraw. This may involve discussion with other panel members, if any, or tribunal counsel, the chair, or the registrar. Alternatively, the member could disclose the possible issue of bias to the parties in the appeal and invite submissions on whether the member should withdraw or continue with the appeal.
17.3.2 Conflict of Interest
Members must avoid all real or apparent conflicts of interest. Members must arrange their private affairs in a manner intended to avoid the possibility of a real or apparent conflict of interest arising in their role with WCAT. A conflict of interest arises when a member’s relationships, financial interests, or activities inhibit, or may reasonably be thought to inhibit, the impartial discharge of his or her obligations as a member.
A member must not participate in a proceeding where the member has (or has had within the last 12 months) a significant or close personal, professional, or business relationship with a party, a party’s representative, or witness to an appeal.
For greater certainty:
- a “real conflict of interest” occurs when a member has a personal interest (either pecuniary or non-pecuniary), relationship, or association (past or present) as a result of which the member will benefit or suffer directly or indirectly as a result of the outcome of an appeal;
- an “apparent conflict of interest” exists when a reasonable and informed person looking at the situation would assume that, as a result of a personal interest (either pecuniary or non-pecuniary), relationship or association (past or present), a member will benefit or suffer directly or indirectly as a result of the outcome of an appeal.
It is the responsibility of each member to actively inquire into and consider any circumstance which might suggest a possible conflict of interest regarding any of the member’s responsibilities. On recognizing a possible conflict, the member should consider whether it would be appropriate to withdraw. This may involve discussion with other panel members, if any, or tribunal counsel, the chair, or the registrar.
If the member considers that it is appropriate to withdraw from the appeal, it will be returned to the registry for reassignment. If the member considers that withdrawal may not be necessary, the details giving rise to the possible bias or conflict of interest will be disclosed to the parties for submission. These details will be disclosed in writing if the appeal is by written submissions or there are at least 14 days before a scheduled oral hearing. If the appeal is by oral hearing and there are less than 14 days before the scheduled oral hearing, the member will disclose the details giving rise to the possible bias or conflict of interest orally at the outset of the oral hearing.
Parties are expected to make any allegations regarding a member’s possible bias or conflict of interest related to an appeal at the earliest practicable opportunity after learning the circumstances that give rise to the allegation. The party making the allegation will be required to provide details in writing to the panel of the evidence and argument it relies upon to establish the allegation. At the panel’s option, the details may be presented orally.
If, after considering that evidence and argument and any evidence and argument the other parties present on the issue, the panel determines a possible bias or conflict of interest exists, the appeal will be returned to the registry for reassignment. If the panel concludes that neither actual nor apparent bias exists or that a real or apparent conflict of interest does not exist, the panel must inform the parties in writing and provide reasons. This may be by preliminary decision dealing only with the bias or conflict of interest allegation, or as a preliminary determination made as part of the final decision in the appeal.
Where the possibility of a conflict of interest or bias becomes apparent to a member during a hearing, the member must identify the potential problem to all the parties and may invite oral submissions on the matter. The panel may adjourn to reach a decision on the matter, or the member may withdraw from the appeal if the member considers it appropriate. Alternatively, the parties may consent to the member proceeding with the oral hearing.
If a member withdraws from an appeal on the basis of a real or apparent conflict of interest, the member must not participate in any manner in the appeal.
Following a WCAT decision, if a party raises an allegation of actual or a reasonable apprehension of bias or a real or apparent conflict of interest against a member, the chair will review the allegation and, if an apparent case is established, will treat the allegation as an application for reconsideration of the decision to cure a jurisdictional defect, that is, a breach of the duty of procedural fairness. If the chair was a member of the panel which issued the decision, tribunal counsel or the registrar will address the allegation.
17.4 Appeal Outcome
With respect to each issue addressed in a decision, the panel will normally state whether the appeal is allowed, in whole or in part, or denied. In the conclusion, the panel will state whether the decision under appeal was confirmed, varied, or cancelled and provide a summary of its decision on each issue [s. 306(1)].
On an appeal concerning a reopening application [s. 289(2)], the panel will determine that the matter that was the subject of the application under section 125(1) [s. 306(2)] must be reopened, or may not be reopened (3.1.4).
Given the final and conclusive nature of a WCAT decision, a panel has no authority over the Board’s implementation of the panel’s decision.
17.4.1 Findings versus Recommendations
WCAT decisions should clearly distinguish between a binding and conclusive finding on an issue under appeal, and a recommendation which is intended as a gratuitous comment with no legal status. Due to legislative restrictions on the Board’s authority to revisit previous decisions, panels will exercise caution in making recommendations.
17.4.2 Signing Decisions
WCAT members will personally sign their decisions either manually or electronically. In extraordinary circumstances, such as where a panel member is unexpectedly away from WCAT for an extended period due to illness, the panel member may authorize another WCAT member to sign on their behalf provided there is no change from the version the panel member approved.
17.5 Notice of Decision
WCAT will send each party a copy of its final decision [s. 52(1) ATA] as well as any amendments or addenda to the final decision.
17.5.1 Filing Final Decision in Supreme Court
A party to a final decision may file a certified copy of the final decision with the Supreme Court [s. 309(4)]. A filed decision has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court [s. 309(5)].