Request a certification to court
Under the Workers Compensation Act, a worker (or their dependents or family members) may only be able to claim workers’ compensation benefits for a work-related injury, disability, disease or death. Depending on the situation, they may not be able to recover damages by suing a person who caused or contributed to their injury, disability or death if it happened during the course of their employment.
In a legal proceeding that involves suing for damages, the court may be asked to decide whether the injured person has the right to sue. If an injury, disability or death is part of a court action, the court or any party to the court action can request a decision from the Workers’ Compensation Appeal Tribunal (WCAT) to determine whether the injury, death or disability is work-related, and whether parties to the court action were workers or employers. For example, WCAT may decide:
- If the injured person (the plaintiff in the court action) was a worker and whether their injuries were work-related
- Whether, at the time of the incident that caused the injury, the person who caused or contributed to the plaintiff’s injury, disability or death was:
- A worker, and whether that person’s actions arose out of and in the course of their employment
- An employer engaged in an industry within the meaning of Part 4 of the Workers Compensation Act at the time of the injury
Once WCAT makes the decision, it is certified and filed in the court action. The court can then decide whether the action can continue or is barred by section 127 of the Workers Compensation Act. For this purpose, “court” includes the BC Civil Resolution Tribunal.
Make a WorkSafeBC claim
A WorkSafeBC claim is not required to request a certification to court. However, if it’s decided that the injury, disability or death was work-related, you only have one year from the date of injury or disability to make a claim for workers’ compensation benefits.
If you have not already done so, you may start a WorkSafeBC claim for compensation on a provisional basis within a year of the incident. Making a claim will not affect the certification to court application or your position in the court action. WorkSafeBC files will be disclosed as part of the certification to court request.
WorkSafeBC must authorize the court action if it’s related to an incident where workers’ compensation benefits were paid. If you have an accepted WorkSafeBC claim, WCAT will only process a request for certification to court once the WorkSafeBC legal department has authorized the court action.
Apply for a certification to court
Apply at least eight months before the trial date. Applications are processed based on when parties say they’re ready to proceed.
Complete a form
Fill out the form and send it to WCAT.
Along with your form, send the following documents to WCAT:
- A copy of all court documents that have been filed, for example, the notice of civil claim (or equivalent), notice of trial (or equivalent), or the response to civil claim (or equivalent)
- Evidence and a written argument that clearly outlines the issues, sets out the factual background, and explains how each piece of evidence proves facts or how laws, policies or legal precedence apply to the situation
Provide evidence or arguments that are effective:
- Make points as clearly as possible – use point form, if you like
- Use a plain tone – avoid strong or emotional language, such as sarcasm
- Organize information by date
- Explain where each piece of evidence can be found (e.g., in the WorkSafeBC claim file or with new evidence being submitted)
- Include relevant laws or policies – for example, the Workers Compensation Act and Regulations or WorkSafeBC policies
- List any past WCAT decisions that are relevant to the situation – note which facts are similar, and which are not
- Provide all relevant information – do not assume WCAT will investigate further or that you will have more opportunities to submit more evidence or arguments
- Information from websites should be printed or saved and included with your submission – do not include links to websites
Transcripts of examination for discovery. Provide a copy of any transcripts from discovery examinations completed as part of the court action to WCAT. Do not provide a copy of the transcript to any other party unless requested to do so. WCAT will notify the person examined (or their authorized representative) before disclosing the transcript to any participating interested person.
Notify WCAT of any changes. Let WCAT know right away if there are any changes or developments in the court action – for example, trial date scheduling, settlement or dismissal, or change of legal representation.
Notify WCAT of any related court actions. Inform WCAT of any related actions, including actions related to accident benefits paid by the Insurance Corporation of British Columbia. WCAT will invite the parties to the related action to participate in the WCAT proceeding or apply for a separate determination. If the parties to the related action require a certification to court, WCAT will normally process the applications jointly.
Provide copies of correspondence to all parties. Make sure to provide copies of all your correspondence with WCAT, including any forms and submissions, to the other participating parties – for example, your Application for certification to court (PDF). WCAT will let you know who is participating. You do not need to provide a copy of transcripts of discovery examinations.
On all correspondence with WCAT, clearly identify who received copies of the correspondence and how the copies were sent.
An applicant can withdraw a certification to court application any time by submitting a written request to WCAT.
A withdrawal does not affect the right to reapply for a certification to court in the future.
How the process works
All the parties named in the court action are invited to participate and submit evidence or other written documents. WCAT may also invite other persons who are affected by the decision, even if they are not a party to the court action. For example:
- Parties from a related court action
- People from another WorkSafeBC claim resulting from the same accident or event
- The employer of a party who may have been a worker at the time of the injury
If you have been invited to participate, complete the following form:
WCAT will arrange for all participating parties to get copies of documents from WorkSafeBC, including claim files relevant to the certification to court decision. To request a complete copy of a claim file for the purposes of the court action, send a written request to the WorkSafeBC Legal Disclosures Clerk. Include a court order or written consent from the claimant.
Parties provide written submissions. The party who started the application is invited to provide their written submission of evidence and information first. Then, other participating parties are invited to make submissions, including submissions about additional issues they’re requesting a decision for. The applicant is given a final opportunity for rebuttal.
Scheduling an oral hearing. If a vice chair determines that an oral hearing is needed, all participants in the certification to court application will be invited to participate.
A decision takes about 90 days from the time all submissions is received. It may take longer if the application is complicated.
A vice chair or panel will consider documents and evidence and make a final decision called a certification to court. The court will decide the impact of WCAT’s decision on the court action. It cannot be appealed.
The decision is based on:
- Evidence and submissions provided by all parties and evidence in the WorkSafeBC file, if there is one
- WorkSafeBC policies relevant to the application, including old versions of the policies that were in effect at the time of the incident. Policies that are completely inconsistent with the Workers Compensation Act (section 304) are not considered
- Decisions from a precedent panel appointed under section 285(6) of the Act unless the decision involved different circumstances or depends upon a policy that has been changed
The final decision with supporting reasons is:
- Mailed to all the parties in the court action and anyone who participated in the certification to court application
- Published on the WCAT website
If the court action started in B.C., WCAT will file the certification to court with the court registry and send proof of filing to all parties to the court action.
If the court action started outside of B.C., the person who applied for the certification must file it with the proper court.
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Manual of Rules of Practice and Procedure (MRPP)
Chapter 18: Certification to Court