Chapter 4: Who May Appeal
- 4.1 Workers’ Compensation
- 4.2 Employer Assessment and Classification
- 4.3 Occupational Health and Safety
- 4.4 Prohibited Action
- 4.5 Reopening on Application
- 4.6 Deceased Worker – Standing of Estate
- 4.7 Employer Standing
- 4.8 Who May Respond
- 4.9 Workers Employed by the Government of Canada and Federal Government Bodies
Only persons directly affected by a decision have standing to appeal [s. 290, s. 291]. To be “directly affected” a person must have a direct and immediate legally material interest in the matter.
4.1 Workers’ Compensation
Persons directly affected by a decision of a review officer concerning compensation are [s. 291(1)]:
4.2 Employer Assessment and Classification
Persons directly affected by a decision of a review officer respecting:
- an assessment or classification matter (including personal optional protection coverage),
- a monetary penalty or order to make a payment to the Board concerning the costs of a claim where:
- the employer was not registered with the Board at the time of a worker’s injury or disease [s. 47(2)263];
- the employer was late in reporting the injury or disease to the Board [s. 262]; or,
- the injury, death or disablement was due substantially to the fault of the employer as defined in section 251.
are [s. 291(2)]:
- an employer,
- an independent operator.
4.2.1 Employer Cost Transfer Appeals (Section 249)
Both employers are persons directly affected by a decision of a review officer under section 249 respecting claims cost transfer from one employer to another.
4.3 Occupational Health and Safety
Persons who may be directly affected by a decision of a review officer respecting an occupational health and safety matter under the OHS provisions respecting:
- a Board order,
- a refusal to make a Board order,
- a variation of a Board order, or
- a cancellation of a Board order.
are [s. 290]:
- a worker;
- an employer (4.7 to 220.127.116.11);
- an owner [s. 13];
- a supplier [s. 13];
- a union [s. 13];
- a member of a deceased worker’s family.
4.4 Prohibited Action
Persons who may be directly affected by a Board determination, order, refusal to make an order, or cancellation of an order made under section 50 on a prohibited action complaint are [s. 290(2)]:
4.5 Reopening on Application
Persons directly affected by a decision to reopen or not to reopen a claim on an application under section 125 are [s. 291(3)] (3.1.4):
- a worker,
- an employer.
4.6 Deceased Worker – Standing of Estate
RULE: The representative of the estate of a deceased worker has the right both to initiate an appeal and to continue an appeal on behalf of a deceased worker concerning a claim for compensation up to the date of the worker’s death. Documentation is required to establish the identity of the estate’s representative. This may include:
- the grant of administration or probate;
- a statutory declaration together with a copy of the will if there is a will and probate is not required;
- if there is no will, a statutory declaration confirming the estate’s representative; or,
- documentation regarding an administrator appointed pending legal proceedings.
WCAT does not generally require probate if it is not otherwise required.
In order to ensure compliance with time frames for appeals, WCAT may register an appeal pending satisfactory documentation.
For the purposes of this rule, the representative of the estate may be required to provide certified copies of documents.
(See Appendix 5 for examples of statutory declarations that may be used to comply with this rule.)
4.7 Employer Standing
4.7.1 Employer of Record
The employer of record, that is, the original employer the Board identified on the claim file or the employer who participated at the Review Division, has standing to initiate an appeal.
18.104.22.168 Change in Status
Where the status of the employer of record has changed according to the Board’s Assessment Department, for example, the employer of record has been categorized as “inactive,” “not active,” “cancelled,” “invalid account,” “closed” or there is a “successor account,” the employer of record may lose its standing to appeal.
If the employer of record’s status has changed, WCAT will determine whether it continues to have standing to initiate an appeal on the basis that it is directly affected by the decision under appeal. To determine whether an employer has a direct and immediate legally material interest in an appeal, WCAT may obtain evidence from the Board’s Assessment Department to determine whether the employer has a direct financial interest in the decision under appeal. Except in appeals of assessment and classification matters under section 291(2), a direct financial effect does not include the potential to affect the employer’s classification unit.
WCAT may determine that an employer is directly affected non-financially in appeals involving a prohibited action, a claim for a mental disorder or psychological disability alleging bullying or harassment, or the employer’s reputation.
4.7.2 Other Employers
If the status of the employer of record has changed, other employers may have standing to initiate an appeal if WCAT determines that they are directly affected (financially or non-financially) by the decision under appeal.
Where another employer or group of employers is directly affected by a decision of a review officer respecting an employer assessment or classification, they may have standing to appeal.
4.7.3 Deemed Employers
Where no employer has standing to appeal, WCAT may deem an employers’ adviser or an organized group of employers (industry association) to be the employer [s. 300(1)]. In the latter case, the organized group of employers must include employers in the subclass of industry to which the employer, who has ceased to be an employer, belonged [s. 300(2)].
If the Review Division deemed an employers’ adviser or an organized group of employers to be the employer, WCAT will deem them to be the employer [s. 300(3)]. If the Review Division did not deem any person to be the employer, WCAT may consider deeming an employers’ adviser or an organized group of employers to be the employer where:
- an employers’ adviser or an organized group of employers seeks to appeal a decision to WCAT;
- there are issues which could best be resolved with the addition of an employer’s submission;
- there is evidence which is best tested with the participation of an employer;
- an employer could provide helpful factual information about circumstances affecting the issue in an appeal;
- the appeal involves a significant issue concerning the interpretation of law or policy; or,
- the appeal may involve an issue having significant financial value.
A deemed employer has standing to initiate an appeal.
22.214.171.124 Organized Groups of Employers
Organized groups of employers who wish to participate in appeals should apply to WCAT in writing and identify:
- the employer classifications or sectors for which they would like to participate;
- the individual authorized to represent the organized group of employers;
- their commitment to comply with sections 235 and 314 concerning the privacy of information on claim files.
4.8 Who May Respond
A person who has standing to initiate an appeal of a decision to WCAT has standing to respond, that is, be a respondent, to an appeal of that decision.
4.9 Workers Employed by the Government of Canada and Federal Government Bodies
The Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA) does not contain an appeal provision. However, section 4(2) of the GECA provides that employees of the Government of Canada, and members, officers or employees of any department, corporation or other body that is established to perform a function or duty on the Government of Canada’s behalf are entitled to receive compensation under the same provisions as are provided by provincial law. Accordingly, federal government workers and their employers have the same appeal rights as provincially regulated workers and employers.