Chapter 20: Post-Decision
- 20.1 Amendments to Final Decisions
- 20.2 Reconsideration of Final Decisions
- 20.3 Reconsideration Applications
- 20.4 Judicial Review
- 20.5 Effect of Application for Reconsideration or Petition for Judicial Review
A decision of WCAT is final and conclusive and is not open to question or review in any court [s. 309(1)]. There is no further right of appeal and the Board must comply with a final decision of WCAT [s. 309(3)]. This includes summary decisions (such as those concerning applications for extensions of time to appeal or dismissals or withdrawals of appeals) and decisions on the merits. It does not include referrals back to the Board under section 297(3), and interim decisions such as determinations on whether an appeal will be heard orally or in writing, whether an order will be issued, or findings of fact made prior to a final decision on an appeal.
Given the final and conclusive nature of a decision, WCAT has no authority over the Board’s implementation of the decision. Inquiries regarding implementation of a WCAT decision must be directed to the Board.
Functus officio means “a task performed.” In the context of quasi-judicial tribunals like WCAT, this common law doctrine means that, having rendered its decision, a tribunal has no further legal authority or jurisdiction over the matter.
The WCA contains some limited exceptions to the general principle of functus officio where it is necessary to correct a clerical error, an inadvertent error or omission, or to clarify an ambiguity in the decision [ss. 307(1), (2), and (4)]. WCAT may complete a decision where a panel has failed to decide an issue.
WCAT has the statutory power to reconsider a decision on the ground of new evidence that meets the requirements of section 310(3). WCAT also has a limited power to cure all or part of a decision if it contains one or more particular types of jurisdictional error. These types of jurisdictional error exist where WCAT had no power to decide a matter, failed to decide a matter that WCAT was required to decide, or was procedurally unfair. [s. 307(5)]
Post-decision communications should be in writing and directed to TCO.
20.1 Amendments to Final Decisions
A panel may, on request by a party or on the panel’s own initiative, amend a final decision to correct any of the following [s. 307(1)]:
- a clerical or typographical error;
- an accidental or inadvertent error, omission, or other similar mistake;
- an arithmetical error made in a computation.
Panels must issue amendments within 90 days of all parties being served with the final decision, unless the panel determines otherwise [s. 307(2)].
A panel may, on request by a party or on its own initiative, amend a final decision to clarify it [s. 307(2)]
Panels must issue amendments within 90 days of all parties being served with the final decision, unless the panel determines otherwise [s. 307(2)]
As the Board is not a party to an appeal, the Board does not have the authority to request that WCAT clarify a decision. WCAT may not clarify a final decision on its own initiative.
20.1.3 Incomplete Decision
If a panel fails to address an issue contained in the appeal before it, that it was required to decide, its decision is not complete and the panel may complete its adjudicative function by issuing an addendum to the original decision, either on its own initiative or on request for reconsideration of a party on the basis that the panel has not completed the decision.
If a party alleges that a panel has not completed its decision, the party may apply for reconsideration on the basis that the panel has not completed its decision.
20.2 Reconsideration of Final Decisions
20.2.1 Reconsideration Based on New Evidence (Section 310)
A party to a completed appeal may apply to the chair for reconsideration of a decision if new evidence has become available or been discovered. The chair may refer the decision for reconsideration if the chair is satisfied that the new evidence [s. 310(3)(a) and (b)]:
- is substantial and material to the decision. Substantial means that it has weight and supports a different conclusion; material means that it is relevant to the decision; and,
- did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not have been discovered through the exercise of reasonable diligence.
The chair has delegated this authority to vice chairs.
A new evidence reconsideration application does not call into question the validity of the decision. Rather, the application is based on new evidence now available which may support a different decision on the merits.
20.2.2 Reconsideration to Cure a Jurisdictional Error
Section 307(5) states that provisions regarding amendment of errors or clarification of a decision do not limit WCAT’s ability to reopen an appeal to cure a jurisdictional defect on the request of a party. WCAT calls this process a reconsideration to cure a jurisdictional error. A reconsideration is not an opportunity to re-argue the appeal.
WCAT may reopen its decision to cure a jurisdictional error. There are two types of jurisdictional errors which WCAT has the power to cure: breaches of the duty of procedural fairness and narrow jurisdictional errors. Narrow jurisdictional errors arise where WCAT had no power to decide a matter or WCAT failed to decide a matter that WCAT was required to decide.
An application for reconsideration to cure a jurisdictional error calls into question the validity of the decision.
WCAT will apply the same standards of review to reconsiderations to cure jurisdictional errors as will be applied by the court on judicial review (20.4.3).
188.8.131.52 Limits on WCAT’s Reconsideration Power
The authority to consider an application to cure a jurisdictional error is discretionary in nature.
WCAT cannot change the outcome of a decision on the basis that it is incorrect, unreasonable, or patently unreasonable.
WCAT does not have the authority to reconsider a final decision on its own initiative. As the Board is not a party to an appeal, the Board does not have the authority to request that WCAT reconsider a decision.
WCAT does not have the authority to reconsider decisions by the former Review Board or the current Review Division. Objections to those decisions will be treated as appeals, or applications for extensions of time to appeal. WCAT also does not have the authority to reconsider decisions of the former Commissioners on any ground, or decisions of the former Appeal Division to cure a jurisdictional error. An objection to one of those decisions must be brought as a judicial review in the Supreme Court of British Columbia.
WCAT has the authority to reconsider a former Appeal Division decision on new evidence grounds [s. 310(1)(b)].
20.2.3 Reconsideration on Both Grounds
As an application for reconsideration to cure a jurisdictional error concerns the validity of the initial decision, such applications should be made soon after the decision is issued. However, new evidence to support an application under section 310 may not arise until a few years after the decision. For that reason, parties may seek reconsideration on both grounds at the same time or separately.
20.2.4 Time Limit
There is no time limit for applying for reconsideration.
20.2.5 One Time Only
A party to a completed appeal may apply for reconsideration of a decision on the basis of new evidence on one occasion only [s. 310(4)].
Where a party had more than one appeal, and WCAT administratively joined the appeals such that only one decision was issued, the party may bring separate reconsideration applications for each appeal on new evidence grounds. However, where the new evidence is relevant to more than one of the joined appeals, the party must bring the reconsideration applications at the same time.
WCAT will hear an application for reconsideration to cure a jurisdictional error on one occasion only regardless of the number of appeals that were administratively joined.
WCAT will not hear a further application for reconsideration of a WCAT decision provided in response to an application for reconsideration.
If, before a decision has been made, a party requests to withdraw the reconsideration application, WCAT has the discretion to accept or deny the withdrawal request. If the request is accepted, the party may reapply at a later date.
20.3 Reconsideration Applications
Reconsideration applications, whether on the ground of new evidence or jurisdictional error, require WCAT to first determine whether the statutory requirements for reconsideration have been met (i.e. whether the evidence is new and is substantial and material or whether there is a jurisdictional error that is within WCAT’s jurisdiction to address). Only if these requirements have been met can WCAT then consider the new evidence or, in the case of a jurisdictional error, rehear all or part of the appeal.
To avoid putting the parties to unnecessary effort and expense, WCAT will often consider the first question separately as stage one in a two stage process. However, where appropriate, both stages of the reconsideration process may be considered at the same time. If this is the case, parties will be advised in advance how WCAT will be proceeding.
A reconsideration based on new evidence may be considered by the original panel or a new panel. A reconsideration based on jurisdictional error (including a breach of procedural fairness) will normally be considered by the original panel.
The reconsideration procedure is flexible and can be varied to fit the needs of a particular case. Reconsideration applications are normally decided on the basis of written submissions. This is the usual process that will be followed:
- Parties applying for reconsideration must complete the Application for Reconsideration form and must explain the specific grounds for reconsideration. Forms are available from TCO and WCAT’s website at www.wcat.bc.ca. Completed forms should be sent to TCO.
- TCO will conduct a preliminary review of a party’s objection to a WCAT decision.
20.3.1 Reconsideration not to Proceed
- If the objection does not appear to set out potential grounds for reconsideration, TCO will provide the applicant with information about the grounds for reconsideration and will advise them of the procedure for applying for reconsideration. TCO will not forward an objection that does not appear to set out potential grounds for reconsideration to the registry. WCAT will take no further action with respect to the objection.
20.3.2 Reconsideration to Proceed
- If the objection sets out potential grounds for reconsideration, TCO will advise the applicant that the reconsideration will proceed. TCO will forward the application to the registry which will process the application and invite written submissions from the parties.
- Once submissions are complete, the reconsideration application will be assigned to a panel for decision about whether there are grounds for reconsideration.
- If a panel decides that there was a breach of procedural fairness, that WCAT had no power to decide a matter, or that WCAT failed to decide a matter that WCAT was required to decide then the application will proceed to the second stage in which the panel will hear all or part of the appeal afresh. WCAT will decide how the second stage will be conducted (7.1).
- If a panel decides that there are new evidence grounds for reconsideration, the application will proceed to the second stage in which the panel will reconsider the previous decision on the basis of the new evidence. The second stage panel’s decision will only concern the specific issues on which the new evidence grounds were met and whether the new evidence will result in a change to the original decision.
- WCAT will decide how the second stage of new evidence reconsiderations will be conducted (7.1 and 7.5). The statutory time limit for decision-making does not apply to the second stage of a new evidence reconsideration, however WCAT will nominally apply a 180‑day time limit.
- WCAT will invite respondents to participate in both stages of the reconsideration process.
- Where a reconsideration application is based on new evidence, requests for reimbursement of expenses will generally be addressed in the second stage of the reconsideration.
20.4 Judicial Review
A judicial review is a legal procedure that takes place in the Supreme Court of British Columbia. In a judicial review, a Supreme Court judge reviews a decision that has been made by an administrative tribunal or an administrative decision maker. WCAT is an administrative tribunal.
A judicial review is not an appeal and will be granted only in limited circumstances. General information about judicial reviews of WCAT decisions is accessible on WCAT’s website at www.wcat.bc.ca. Parties are advised to contact a lawyer if they have questions regarding the judicial review process. Further information is also available on-line at the B.C. Supreme Court’s Self-Help Information Centre at: www.supremecourtselfhelp.bc.ca.
20.4.1 Reconsideration and Judicial Review
A party may apply to WCAT for reconsideration of a decision and apply to the court for judicial review of the same decision at the same time. In that case, WCAT will provide the reconsideration panel with the judicial review petition and related documents. The panel will consider the portions of those documents which are relevant to the reconsideration application.
20.4.2 Time Limit for bringing a Judicial Review
A judicial review of a final WCAT decision must be commenced within 60 days of the date the decision is issued [s. 57(1) ATA]. Under certain circumstances, the court may extend the time.
20.4.3 Standards of Review
The court will not interfere in a final WCAT decision unless threshold grounds are met. There are three possible standards of review [s. 58(2) ATA]:
- patently unreasonable for a finding of fact or law or an exercise of discretion in respect of a matter over which WCAT has exclusive jurisdiction under the privative clause [s. 308 WCA];
- fairness in all of the circumstances for questions about the application of common law rules of natural justice and procedural fairness; and,
- correctness for all other matters.
A court will consider a discretionary decision to be patently unreasonable if the discretion is exercised arbitrarily or in bad faith, is exercised for an improper purpose, is based entirely or predominantly on irrelevant factors, or fails to take statutory requirements into account [s. 58(3) ATA].
20.4.4 Publication of Judicial Review Decisions
In addition to the court websites, judicial review decisions regarding WCAT decisions are accessible on WCAT’s website at www.wcat.bc.ca.
20.5 Effect of Application for Reconsideration or Petition for Judicial Review
An application for reconsideration or a petition for judicial review does not act as a stay of the WCAT decision. Unless and until the WCAT decision has been set aside, it continues to be final and conclusive.