Chapter 5: How to Appeal
- 5.1 Initiating an Appeal
- 5.2 Authorizations
- 5.3 Service and Delivery of Documents
- 5.3.1 Change of Address
- 5.3.2 Returned Mail
There is a 30‑day time limit for appealing a decision of a review officer to WCAT. There is a 90‑day time limit for appealing a decision of a Board officer concerning a prohibited action complaint [s. 50] or concerning a reopening application [s. 125(1)] to WCAT.
An appeal may be initiated by filing a notice of appeal with WCAT. A notice of appeal must [s. 292(2)]:
- be made in writing or in another form authorized by WCAT’s rules,
- identify the decision or order that is being appealed,
- state why the decision or order is incorrect or why it should be changed,
- state the outcome requested,
- contain the name, address and telephone number of the appellant and, if the appellant has an agent to act on their behalf in respect of the appeal, the name of the agent and a telephone number at which the agent may be contacted during regular business hours,
- include an address for delivery of any notices in respect of the appeal, and
- be signed by the appellant or the appellant’s agent.
If the notice of appeal is deficient, WCAT will allow a reasonable time for it to be corrected [s. 292(3)]. If the appellant does not correct the deficiencies within the time allowed, WCAT will close the appeal as incomplete and take no further action. If the appellant later wishes to pursue the appeal, they must apply for an extension of time to appeal (s. 293(3), and 8.2 to 8.2.3).
5.1 Initiating an Appeal
5.1.1 Notice of Appeal Must Be in Writing
RULE: An appellant may initiate an appeal in any written form which provides the information required by section 292(2). This may be done by delivering, mailing or sending by facsimile transmission (fax) to WCAT a completed notice of appeal form, letter, or other document containing the required information in English. WCAT will treat receipt of a written notice to appeal by the Review Division or by any Board office as receipt by WCAT.
Where the appeal is initiated by fax, it is not necessary to send WCAT the original document. Where the appellant also sends the original document, WCAT will note the fax received date on the original document and destroy the fax.
An appellant must meet the requirements of section 292(2) or WCAT will not consider an appeal to be initiated.
WCAT notice of appeal forms are accessible on the WCAT website at: www.wcat.bc.ca.
5.1.2 Telephone Notification of Intent to Appeal
RULE: Telephone notification is not sufficient to initiate an appeal. WCAT will accept telephone notice of intent to appeal for the purpose of meeting the 30- or 90‑day time limit, provided that WCAT receives a written notification from the appellant which meets the requirements of section 292(2), within the time WCAT subsequently allows.
Where WCAT receives telephone notification of intent to appeal, WCAT will provide the appellant with the appeal number. WCAT will promptly write to the appellant to acknowledge the telephone notification and advise that WCAT must receive a written notice of appeal within the time WCAT subsequently allows (normally 21 days).
Where an appellant does not provide the required information by the date WCAT subsequently allows, WCAT will treat the appeal as incomplete and as not initiated within the time limit to appeal. WCAT will close the appeal and take no further action. If the appellant later wishes to pursue the appeal, they must apply for an extension of time to appeal (see s. 293(3) and 8.2 to 8.2.3).
5.1.3 Incomplete Notice of Appeal
RULE: Where the notice of appeal, letter or other written method of initiating the appeal does not meet the requirements of section 292(2), the appellant must provide a complete notice of appeal within the time WCAT subsequently allows (normally 21 days), or the time limit to appeal, whichever is greater.
Where an appellant does not provide the required information by the date WCAT subsequently allows, WCAT will treat the appeal as incomplete and as not initiated within the time limit to appeal. WCAT will close the appeal and take no further action. If the appellant later wishes to pursue the appeal, they must apply for an extension of time to appeal (see s. 293(3) and 8.2 to 8.2.3).
5.1.3.1 Withdrawal of Incomplete Appeal
RULE: An appellant may withdraw an incomplete appeal at any time. WCAT will close the appeal and take no further action. If the appellant later wishes to pursue the appeal, they must apply for an extension of time to appeal (see s. 293(3) and 8.2 to 8.2.3 and 8.5).
An incomplete appeal is an appeal that has not met the requirements of section 292(2).
5.1.4 Decision or Order Appealed
RULE: To meet the requirements of section 292(2)(c), it is sufficient for the appellant to provide a brief explanation as to why the decision or order appealed is incorrect or should be changed.
5.1.5 Outcome Requested
RULE: To meet the requirements of section 292(2)(d), it is sufficient for the appellant to provide a brief statement of the outcome requested. The appellant should relate the requested outcome, that is, the remedy, to the issues raised by the decision or order appealed. WCAT generally lacks jurisdiction to award remedies or outcomes with respect to matters not addressed in the decision or order appealed (3.3).
5.1.6 Procedure – Constitutional Issues and Human Rights Code
5.1.6.1 Who May Raise Constitutional Issues
Any party to an appeal can raise a constitutional issue. A WCAT panel may also raise a constitutional issue on its own initiative. A party or WCAT may raise a constitutional issue on appeal to WCAT, regardless of whether the issue was raised at the Review Division.
5.1.6.2 When to Raise Constitutional or Human Rights Code Issues
Rule: A party who intends to raise a constitutional issue and/or to ask WCAT to apply the Human Rights Code must state their intention to do so and describe the constitutional issue and/or application of the Human Rights Code as soon as it is reasonably practicable to do so. Failure to comply with this rule may result in WCAT refusing to address the constitutional issue and/or apply the Human Rights Code.
5.1.6.3 Order of Consideration of Issues
In general, WCAT will not address constitutional issues or apply the Human Rights Code unless the panel assigned to the appeal determines it is necessary to do so in order to decide the appeal. A panel may consider and decide issues other than constitutional or issues requiring application of the Human Rights Code first. WCAT may decline to consider a constitutional issue or apply the Human Rights Code where the panel determines that the appeal can be properly decided without doing so.
Where a panel indicates that it will consider issues other than constitutional issues before considering a constitutional issue, the party raising the constitutional question or seeking the constitutional remedy may postpone compliance with section 8 of the Constitutional Questions Act (CQA) until the panel has determined whether consideration of the constitutional issue is required [see item 5.1.6.4 Compliance with Constitutional Questions Act].
If, after considering issues other than constitutional issues or issues requiring the application of the Human Rights Code, a panel determines that it is necessary to consider the constitutional and/or Human Rights Code issues, the parties will be given an opportunity to make submissions on those issues.
5.1.6.4 Compliance with the Constitutional Questions Act
The Constitutional Question Act, R.S.B.C., 1996, c. 68 (CQA) requires notice where the constitutional validity or applicability of any law (including a regulation) is challenged, or where an application is made under section 24(1) of the Charter. Notice is not required where the remedy consists of the exclusion of evidence.
Practice Directive: A party to an appeal, who seeks to challenge the constitutional validity or applicability of a provision of the Act, regulations, or policy, or obtain a constitutional remedy as defined by the CQA, must comply with the section 8 of the CQA. In particular, the party raising the constitutional issue or seeking the constitutional remedy must prepare and serve notice on the Attorney General of Canada and the Attorney General of British Columbia in accordance with section 8 of the CQA. Additionally, the party raising the constitutional question must promptly provide to WCAT a copy of the notice together with proof of service on the Attorney General of Canada and the Attorney General of British Columbia.
WCAT determines whether the notice complies with section 8 of the CQA. If the party fails to comply with section 8 of the CQA, the WCAT panel may:
- Decline to consider the constitutional issue or provide a constitutional remedy;
- Adjourn a hearing to give the party time to comply with section 8 of the CQA; or
- Comply with section 8 of the CQA on its own initiative.
In considering whether to exercise its discretion to give the required notice, WCAT will consider whether the party seeking to raise the constitutional question has, when indicating their intention to raise a constitutional question:
- Identified the specific provision of the WCA, regulations or policy they intend to challenge, or the Charter remedy they seek;
- Identified the specific constitutional provision(s) they intend to rely on;
- Identified any specific Charter right or freedom alleged to have been infringed or denied;
- Given particulars necessary to show the point to argued on appeal; and
- Explained why they are unable to provide the notice required by section 8 of the CQA.
WCAT will not normally exercise its discretion to provide notice in the absence of the above information.
If the party seeking to raise a constitutional question does not provide the notice required by the CQA, and WCAT does not exercise its discretion to do so, the constitutional question that the party identified will not be considered.
5.1.6.5 Disclosure to Attorneys General and Submission Process
Where the panel determines that it is necessary to consider a constitutional question, and if, following notice, the Attorney General of Canada or the Attorney General of British Columbia becomes a party to the appeal:
- WCAT will order disclosure of the Board’s records relevant to the matter under appeal to be made to the Attorney General or Attorneys General, as the case may be. WCAT will also provide to the Attorney General or the Attorneys General, relevant information from the appeal, including but not limited to submissions made by the party or parties concerning the constitutional question;
- The Attorney General or Attorneys General will have 28 days from the date of disclosure to provide submissions with respect to the constitutional question;
- WCAT will disclose any submission received from either Attorney General to the other parties, who will have 21 days to provide a submission on the constitutional question in response;
- WCAT will disclose any submission received in response to an Attorney General’s submission to the other parties, for information purposes only, except that the Attorney(s) will have 14 days to provide a rebuttal submission with respect to the application of section 1 of the Charter;
- WCAT will disclose any rebuttal submission received from the Attorney(s) General to the other parties, for information only.
5.2 Authorizations
5.2.1 For Representatives to Act (6.3.1)
RULE: Appellants or their representatives may initiate an appeal. The WCAT notice of appeal form includes authorization for the representative to act. (6.3.1)
The WCAT authorization of representative form is accessible on the WCAT website at: www.wcat.bc.ca.
5.2.2 For WCAT to Obtain Evidence (9.3 to 9.3.3)
RULE: By signing the WCAT notice of appeal or notice of participation form, whether they are the appellant or the respondent, a worker authorizes WCAT to obtain additional medical records or other evidence with respect to them. WCAT may at any time order a worker appellant to provide a current authorization to obtain additional medical records or other evidence.
5.3 Service and Delivery of Documents
Section 344 sets out the principles that WCAT must apply with respect to the service and delivery of documents:
- A document that must be served on or sent to a person may be
- personally served on the person,
- sent by mail to the person’s last known address, or
- transmitted electronically, by facsimile transmission or otherwise, to the address or number requested by the person.
- If a document is sent by mail, the document is deemed to have been received on the 8th day after it was mailed.
- If a document is transmitted electronically, the document is deemed to have been received when the person transmitting the document receives an electronic acknowledgement of the transmission.
Although WCAT may serve documents by fax or electronic transmission, WCAT will normally do so only when a party requests [s. 344(1)(c)].
Where a document is transmitted by fax, the page or printout of the electronic record the fax machine produces that identifies the document, shows the number dialled and that the fax was successfully sent, will normally be proof of delivery or service.
Where a document is transmitted electronically other than by fax, a printout of an electronic acknowledgement of the transmission that identifies the document and intended recipient will normally be proof of delivery or service.
If a decision is served or sent by personal service, or by electronic transmission, the time period runs from the date of service and the eight days for mailing does not apply. The presumption of service in sections 344(2) and (3) does not apply if the party receives the document late because they were absent, in an accident, ill or for another cause beyond their control, so long as they act in good faith [s. 344(4)].
Proceedings are not invalidated due to irregular service if the party to be served knew about the content of the document within the time allowed for service, the party consents, or they are not prejudiced, or the prejudice can be cured by other means [s. 344(5)]. Where service under section 344(1) is impractical, WCAT may notify parties of a hearing by public advertisement or other means [s. 344(6)].
If the last day for filing an appeal or document falls on a weekend or public holiday, the time for filing is extended to the first business day when WCAT’s offices are open [s. 25, Interpretation Act, R.S.B.C. 1996, c. 238].
5.3.1 Change of Address
RULE: Parties must inform the Board and WCAT of any change of address. Where a party fails to do so, evidence that they did not receive a document because it was mailed to their prior address will not rebut the presumption of service under section 344(2) (14.2 to 14.2.3.4 and 13.1 to 13.1.4).
The WCAT change of address form is accessible on the WCAT website at: www.wcat.bc.ca.
5.3.2 Returned Mail
Practice Directive
If mail to a party is returned as undeliverable, WCAT will try to contact the party.
Where WCAT is unable to locate the appellant, WCAT will consider that the appellant has failed to comply with the Rule on Change of Address and the following will apply:
- If the matter has been scheduled for an oral hearing, the oral hearing will be cancelled; and,
- WCAT will send a final notice to the appellant’s last known address advising that, in the absence of a response within 21 days, WCAT may dismiss the appeal [s. 31(1)(e) ATA].
Where WCAT is unable to locate the respondent, WCAT will continue with the proceedings.