Chapter 6: Registration of Appeals
- 6.1 Registration
- 6.2 Acknowledging Receipt
- 6.3 Representatives
- 6.4 Board Notification
- 6.5 Notification of Respondents (4.8)
- 6.6 Participating Person/Representative Group
- 6.7 Posting a Notice in Occupational Health and Safety Appeals
The registrar’s office will register appeals and screen them for compliance with preliminary requirements. When registering an appeal, the registrar’s office will determine whether:
- the notice of appeal is complete;
- additional information is required;
- there is a respondent, other person or representative group, or deemed employer to be notified of the appeal;
- the appellant has provided a valid representative authorization;
- an extension of time to appeal is required;
- the appeal should be handled in the “regular” or “specialty” stream. For appeals in the regular stream, the registrar’s office will decide initially whether the appeal should proceed by written submissions or oral hearing (7.5);
- to dismiss the appeal under Section 31(1) of the ATA.
6.2 Acknowledging Receipt
WCAT will acknowledge it has received an appeal by sending written acknowledgement to the appellant. Where the appeal was filed by a representative, WCAT will send the written acknowledgement to the representative with a copy to the appellant. Acknowledgement will be sent by ordinary mail to the address(es) on the appeal form.
Acknowledgement does not mean that WCAT accepts that the appeal was filed within time or that it meets the conditions or requirements for the appeal to be accepted as complete.
Section 32 of the ATA allows a party to be represented by counsel or an agent. “Lay” representatives are not considered in breach of the Legal Profession Act, S.B.C. 1998, c.9, when acting on behalf of a person on a WCAT matter [s. 354 WCA].
6.3.1 Representative Authorizations
The Rule and Practice Directive in this section are intended to protect the confidentiality of personal information as required by sections 235, 349 and 314 of the WCA. The Rule and Practice Directive do not apply to the workers’ and employers’ advisers and their staff (see section 94).
RULE: Appellants or their representatives may initiate an appeal. The WCAT notice of appeal form includes authorization for the representative to act.
If the appeal is initiated by a representative, the representative must provide the appellant’s signed authorization for the representative to act unless there is an authorization on the Board file that is less than two years old and has not been revoked. If more than two years has elapsed since the party authorized the representative but the authorization has not been revoked, or the appellant’s authorization for the representative to act is in a Request For Review or Notice of Participation filed with the Review Division of the Board in relation to the decision being appealed, and:
- the representative continued to represent the party at the Review Division with respect to the decision being appealed, and received a copy of the Review Division decision;
- the representative continues to represent the party in a post‑decision application before WCAT, a judicial review, or the continuation of an appeal following reconsideration or judicial review; or,
- the two years expires during the course of an appeal, including the continuation of an appeal following reconsideration or judicial review,
the representative may be considered authorized until the end of the appeal, post‑decision matter before WCAT, judicial review proceeding, or continuation of the appeal following reconsideration or judicial review unless the party advises otherwise.
Where a party had an authorized representative acting for them in connection with the decision being appealed, WCAT will normally assume that the representative continues to act for them unless the party indicates otherwise. If the Review Division decision is copied to a representative, WCAT will provide copies of correspondence to the same representative.
WCAT may require a current authorization if significantly longer than two years has elapsed since the party authorized the representative to act.
Where a party has a new representative, the party must provide a current authorization in a form satisfactory to WCAT, such as a notice of appeal signed by the appellant naming the representative, or notice of participation signed by the respondent naming the representative, or the form of authorization accepted by the Board and the Review Division.
The WCAT authorization of representative form is accessible on the WCAT website at: www.wcat.bc.ca.
6.4 Board Notification
As soon as practicable, WCAT must notify the Board of an appeal [s. 295(2)]. The registrar’s office will notify the Board of the appeal once it has determined that there is a valid appeal and has identified any participating respondents. The Board must, as soon as practicable, provide WCAT and the participating parties with a copy of its records respecting the matter under appeal [s. 295(3)].
The appellant will be deemed to have requested disclosure or updated disclosure at the time the appellant files a notice of appeal. If a respondent indicates that they wish to participate in the appeal, the Board will provide them with disclosure or updated disclosure (6.5.1). Disclosure for the purpose of complying with the requirements of procedural fairness is authorized under section 314(1) as being necessary to the discharge of WCAT’s obligations under Part 7 [see 22.214.171.124].
6.5 Notification of Respondents (4.8)
WCAT will notify respondents, that is, any person directly affected by the appeal, of the appeal, and ask them to complete and return a notice of participation if they wish to participate.
More than one employer or deemed employer may be entitled to participate in a worker’s appeal. This might occur, for example, where the worker’s disability may be due to work injuries under two or more different claims with different employers or where the worker is suffering from an occupational disease which may be due to work exposures in multiple places of employment with different employers.
On an appeal which raises the question as to whether the members of a representative group are workers or independent operators, WCAT will notify the putative employer and all the workers/independent operators as the decision could directly affect their status.
6.5.1 Participating Respondents
Participating respondents are entitled to (126.96.36.199):
- copies of all written documentation provided to or obtained by WCAT during the appeal process, apart from legal and other internal memoranda which are protected by solicitor-client and deliberative privilege;
- notice of an oral hearing (if one is held);
- an opportunity to file new evidence and written submissions.
6.5.2 Non-Participating Respondents
If the respondent does not submit a notice of participation, WCAT will provide no further information or notices concerning the appeal, apart from a copy of the final decision. However, where the panel is considering a new determination issued by the Board following a referral back under section 297(3), WCAT will notify a non-participating respondent of the new determination and invite their participation (8.4.1).
A panel is not precluded from hearing from the respondent, if the respondent failed to complete a notice of participation. For example, if the respondent appeared at an oral hearing without first completing a notice of participation, they would have the right to be heard).
6.5.3 Unregistered Employer Charged with Claims Costs (Section 263)
There is no respondent on an employer’s appeal concerning the charging of claim costs under section 263 due to lack of registration at the time of a worker’s injury or disease.
6.5.4 Certificate Appeals (Sections 55, 58 and 59)
There is no respondent on an appeal concerning an order under section 96 to cancel or suspend a certificate under the OHS provisions of an occupational first aid attendant or instructor [s. 55], a medical certificate of a worker’s fitness for a specific type of work such as diving [s. 58, s. 24.10 of the Occupational Health and Safety Regulation, B.C. Reg. 296/97], or a certificate of a blaster or blasting instructor [s. 59].
6.6 Participating Person/Representative Group
Section 297(2)(g) provides that WCAT may request any person or representative group to participate in an appeal if WCAT considers that this participation will assist WCAT to fully consider the merits of the appeal.
WCAT will determine the appropriate means to invite participation (by letter, posting of a notice in the workplace, or other public notice) and the extent of their participation (whether they will receive disclosure of some or all of the file, whether they will participate by written submission only, or whether they will select one representative to speak on their behalf at an oral hearing).
6.6.1 In Assessment Appeals
Where an assessment appeal concerns whether a putative employer is liable for assessments for its “workers,” or whether the alleged workers are independent operators, WCAT may invite the workers/independent operators to participate.
6.6.2 In Employer Relief of Costs Appeals (Section 240(1)(d))
Where an employer’s appeal concerns relief of claim costs under section 240(1)(d) on the basis of a worker’s pre‑existing disease, condition or disability, WCAT will invite the worker to participate as the worker’s evidence of their prior medical and employment history may be relevant.
6.6.3 In Employer Cost Transfer Appeals (Section 249)
Where an employer’s appeal concerns claims cost transfer from one employer to another under section 249, WCAT will invite the injured worker to participate as the worker may have relevant information to provide.
6.6.4 In Administrative Penalty Appeals (Section 95)
Where an appeal concerns an administrative penalty under section 95, WCAT will invite the employer’s joint health and safety committee or worker health and safety representative, and the worker representative indicated on the initiating inspection report (if any), to participate as they may have relevant information to provide.
6.6.5 In Certificate Appeals (Sections 55, 58 and 59)
Where an appeal concerns an order under section 96 to cancel or suspend a certificate under the OHS provisions of an occupational first aid attendant or instructor [s. 55], a medical certificate of a worker’s fitness for a specific type of work such as diving [s. 58, s. 24.10 of the Occupational Health and Safety Regulation], or a certificate of a blaster or blasting instructor [s. 59], WCAT may invite the employer to participate. WCAT will determine the extent of participation.
WCAT may request a representative group of workers or employers to participate in an appeal that involves an important issue of policy or significant financial value or the input of the representative group would assist the panel.
6.6.7 Participation by the Board
As decision-maker, the Board is not a party to tribunal proceedings. The Board does not have standing to participate in an appeal except by WCAT’s invitation. In certain appeals (primarily those involving prevention or assessment matters), WCAT may invite the Board to participate in an appeal under the general authority to request participation by “any person” [s. 297(2)(g)].
WCAT will determine the extent of the Board’s participation in an appeal, and in making that determination WCAT may consider the submissions of the parties.
In appeals where the Board is invited to participate, the Board’s general role will be to provide the panel with information within the knowledge and expertise of the Board, rather than to participate actively as a party. From time to time a Board legal officer may accompany a Board officer invited to attend an appeal hearing, in which case the panel may permit the Board officer and Board legal officer to listen to the testimony of the witnesses. The panel may then permit the Board legal officer to question the Board officer, in the manner of a direct examination, in order to elicit from the Board officer information respecting factual matters referred to by other witnesses, or other factual matters relevant to the issue or issues in the appeal. Regardless of whether the Board officer testifies in the manner of a direct examination, the panel may permit the parties to the appeal to cross-examine the Board officer.
Although subsection 297(2)(g) provides that WCAT may request any person or representative group to participate in an appeal if the tribunal considers that this participation will assist the tribunal to fully consider the merits of the appeal, WCAT will not generally require a Board decision-maker to participate in an appeal with respect to one of their decisions. An expert who provided an opinion on a Board file may be required to give evidence. Section 299(5) prohibits WCAT from compelling the Board to give evidence respecting the development or adoption of the policies of the board of directors.
6.7 Posting a Notice in Occupational Health and Safety Appeals
Where a party appeals an occupational health or safety matter under Part 3, WCAT may order a participating employer (whether the appellant or the respondent) to post a notice to bring the appeal to the attention of its employees [s. 297(2)(f)].
The employer must post the information at or near the workplace in one or more conspicuous place(s) where it is most likely to come to the attention of the workers, or otherwise bring it to their attention. If reasonably practicable, at least one place of posting must be at or near the equipment or work area to which it relates [s. 51]. The employer must provide a copy of the posted notice to WCAT.
The employer is not required to post a notice of appeal concerning a prohibited action matter under section 50, or concerning an order under section 96 to cancel or suspend a certificate under Part 3 (i.e. of an occupational first aid attendant or instructor [s. 55], a medical certificate of a worker’s fitness for a specific type of work such as diving [s. 58, s. 24.10 of the Occupational Health and Safety Regulation], or a certificate of a blaster or blasting instructor [s. 59].
The WCAT form for notice to employees of an appeal of an occupational health or safety matter is accessible on the WCAT website at: www.wcat.bc.ca.