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Home Resources Manual of Rules of Practice and Procedure (MRPP) Chapter 16: Expenses and Costs

Chapter 16: Expenses and Costs

16.1 Expenses

Section 7(1) of the Appeal Regulation provides that WCAT may order the Board to reimburse a party to an appeal for the following:

  1. the expenses associated with attending an oral hearing or otherwise participating in a proceeding, if WCAT required the party to travel to the oral hearing or other proceeding;
  2. the expenses associated with obtaining or producing evidence submitted to WCAT;
  3. the expenses associated with attending an examination required by an independent health professional under section 302(3) of the WCA.

16.1.1 General

A party should make any request for reimbursement of expenses in their submissions to the panel. WCAT may address this question even in the absence of a request. In an oral hearing, the panel will normally ask the appellant and any respondent present whether they are seeking reimbursement of expenses. Parties should also exercise diligence in bringing forward any request for reimbursement.

In considering a party’s claim for reimbursement of expenses, WCAT may order reimbursement where the party or the party’s representative has actually paid the account or where the party or the party’s representative has incurred liability for the account but it remains outstanding. WCAT may order reimbursement of expenses for a witness, to be paid directly to the witness, even where the party has not yet paid this expense. Parties and their representatives should submit receipts to WCAT for amounts for which they are seeking direct reimbursement.

WCAT’s authority to reimburse a party’s appeal expenses is derived from section 7 of the Appeal Regulation. Although there is no board of directors’ policy on reimbursement of appeal expenses WCAT will generally be guided by Board policy at item #100.14 of the RSCM regarding the amount and type of expenses the Board will pay. These are calculated in accordance with the rules set out in the RSCM, items #C10-83.00 (transportation) and #C10-83.10 (subsistence allowances). For more information about appeal expenses, click here.

WCAT will not automatically reimburse a party for an amount that exceeds Board policy or a fee schedule. Parties tendering an account for an expense that exceeds a fee schedule must provide a detailed breakdown of the expense requested and explain why an amount greater than the fee schedule amount is requested. If a panel is asked to reimburse an amount that exceeds a Board policy or fee schedule amount, the panel will consider the request. See 16.1.3.1 for criteria a panel will consider in deciding to reimburse expenses at a different rate or on a different basis than set out in Board policy or in a Board fee schedule.

Where a panel determines that appeal expenses will be reimbursed at a different rate or on a different basis than set out in Board policy or in a Board fee schedule, the panel will provide reasons in its decision.

Practice Directive

16.1.2 Parties’ Attendance at Oral Hearings

WCAT may order reimbursement of certain expenses for a worker’s attendance at an oral hearing. An order for reimbursement will usually be made if the worker was successful on the appeal. The amount of reimbursement may be limited. WCAT will not normally order reimbursement of expenses for an employer’s attendance at an oral hearing.

16.1.2.1 Travel Expenses

Oral hearings will normally be held in British Columbia locations closest to the community where the appellant resides. If, on its own initiative, WCAT schedules an oral hearing at a location that is not the closest, WCAT will order reimbursement of the appellant’s travel expenses. If, to accommodate a representative, an appellant requests the hearing in another location that is not the closest, WCAT will generally limit the amount of reimbursement.

WCAT will normally grant a respondent’s request for reimbursement of travel expenses where the hearing location is not in the area in which the respondent is located. Where the respondent is an employer whose head office is in a different location, WCAT will not normally grant a request for reimbursement of travel expenses where the hearing is held near the employer’s branch location.

WCAT generally limits reimbursement of a party’s travel expenses from outside the province to the portion of travel within British Columbia. However, if WCAT requires a party or witness to attend an oral hearing, WCAT will generally order reimbursement for the full amount of the trip.

Travel expenses are generally not paid for that portion of the journey which takes place within a distance of 20 kilometres of the oral hearing location.

16.1.2.2 When the Oral Hearing does not Proceed

WCAT will normally award reimbursement of expenses to a party or witness who incurred expenses to attend an oral hearing that did not proceed due to WCAT’s administrative error. For example, where a party had not been informed of a postponement and incurs travel expenses to attend the hearing, WCAT will generally award the expenses regardless of the outcome of the appeal. WCAT will also generally award a respondent’s expenses for attending an oral hearing where the appellant fails to attend the hearing without adequate notice.

16.1.2.3 When the Appellant has Moved

Where the appellant has moved without notifying WCAT, and the oral hearing was scheduled in the location closest to the community where the appellant formerly lived, WCAT will not normally award reimbursement of the appellant’s travel expenses. Where the appellant notified WCAT of a new address, but there was insufficient time to reschedule the oral hearing, WCAT will normally award reimbursement of the appellant’s travel expenses.

16.1.3 Reimbursement of Expenses (Witness and Other Evidence)         
(Section 7(1)(b) of the Appeal Regulation)

WCAT will generally order reimbursement of expenses for attendance of witnesses or obtaining or producing written evidence, regardless of the result in the appeal, where:

  1. the evidence was useful or helpful to the consideration of the appeal; or,
  2. it was reasonable for the party to have sought such evidence in connection with the appeal.

Reimbursement of expenses is not dependent upon the result in the appeal. WCAT will generally limit the amount of reimbursement of expenses to the rates or fee schedule established by the Board for this purpose.

WCAT will not order reimbursement of expenses associated with a party duplicating or transmitting written evidence obtained or produced for the appeal. This does not apply to duplicating expenses included in a Board fee schedule.

16.1.3.1 Reimbursement of Expenses for Expert Evidence

WCAT may direct reimbursement for different types of expert evidence (11.6). Most commonly, this involves additional medical evidence obtained for an appeal. It may also include other forms of expert evidence such as ergonomic assessments, employability assessments and functional capacity assessments.

When seeking reimbursement of an expert opinion, in addition to the opinion, the requesting party must also provide a copy of their request and the expert’s bill or account. Where practicable, the expert’s bill or account must itemize the time and expenses incurred in rendering the opinion.

With respect to medical-legal reports and opinions WCAT will usually order reimbursement at the rates established by the Doctors of BC Fees for Uninsured Services. WCAT will usually order reimbursement for other expert reports at the rate established by the Board for the same or similar expenses. The balance is the responsibility of the party who obtained the report. Current information on Board and other fee schedules can be found on WCAT’s website at www.wcat.bc.ca in the “Present evidence and arguments” section.

If there is no Board fee schedule for the same or similar expenses, WCAT will generally consider any fee schedule or similar document published by the professional association governing the expert’s area of practice, if applicable.

A WCAT panel has the discretion to award reimbursement of an expert opinion in an amount greater than the fee schedule, but will do so only in limited circumstances. If the bill or account exceeds the Board fee schedule, the party seeking reimbursement of the full amount must explain the reasons the account exceeds the fee schedule and why the panel should order reimbursement of the full amount. In the absence of a request and a satisfactory explanation of the circumstances, WCAT will limit reimbursement to the fee schedule amount.

Examples of the limited circumstances include:

  • The issue being addressed is unusually complex.
  • The expert was required to review a significant body of evidence and it was reasonable to do so.
  • The expert has a high level of expertise in a unique area and it was reasonable to engage such an expert.
  • There is limited availability of experts in the geographical area and it was reasonable to engage such an expert.
  • The expert was required, for the purposes of providing the opinion, to test or examine parties or witnesses.

In each case, even if the circumstances above exist, the principle of proportionality must be taken into account in determining whether to award reimbursement of an expert opinion in an amount greater than the fee schedule.

16.1.3.1.1 Attendance of an Expert at an Oral Hearing

WCAT will generally order reimbursement of the expense for attendance of an expert at an oral hearing, regardless of the result in the appeal where:

  1. the attendance of the expert was useful or helpful to the consideration of the appeal;
  2. it was reasonable for the party to have the expert attend the oral hearing to give evidence in connection with the appeal; or,
  3. WCAT ordered the attendance of the expert.

The current Board fee schedule does not include an item for attendance of an expert at an oral hearing. WCAT will be guided by the Doctors of BC Fees for Uninsured Services – Medical-Legal Fees. WCAT may decline to order reimbursement of this expense if the expert’s written report was not provided to WCAT at least 21 days prior to the hearing (11.6).

16.1.3.2 Evidence Previously Submitted to the Board

WCAT may authorize reimbursement of the expenses associated with obtaining or producing evidence submitted to WCAT, even if the evidence was previously submitted to the Board or the Review Division. If, for example, the Board and/or the Review Division denied reimbursement, but the WCAT panel finds that the report was useful or helpful to consideration of the appeal, or that it was reasonable for the party to have sought the evidence in connection with the review and appeal proceedings, WCAT may order reimbursement.

16.1.4 Representatives’ Fees

WCAT will not reimburse a party for the expense of a representative. Section 7(2) of the Appeal Regulation provides that WCAT may not order the Board to reimburse a party’s expenses arising from a person representing the party, or the attendance of a representative of the party at a hearing or other proceeding related to the appeal.

16.1.5 WCAT Investigations

Where a worker is required to travel to participate in a WCAT-initiated investigation, such as a medical examination by a health professional [ss. 302(9) and 297(2)(a)], WCAT will direct the Board to make the necessary arrangements for travel and accommodation. WCAT will also direct the Board to reimburse the worker’s expenses for attending the examination according to the Board’s criteria (see RSCM Items #100.14, #C10-83.00 (transportation) and #C10-83.10 (subsistence allowances)). Such expenses will be reimbursed even though the worker is not required to travel and may include lost time from work and child care (12.5.1).

16.2 Costs

Pursuant to section 6 of the Appeal Regulation, WCAT may order one party to pay the costs of the other party where:

  1. another party caused costs to be incurred without reasonable cause, or caused costs to be wasted through delay, neglect or some other fault;
  2. the conduct of another party has been vexatious, frivolous or abusive; or,
  3. there are exceptional circumstances that make it unjust to deprive the successful party of costs.

WCAT can only order a party, not the Board, to pay costs under this provision.

Where a panel concludes that, pursuant to section 6 of the Appeal Regulation:

  1. another party caused costs to be incurred without reasonable cause, or caused costs to be wasted through delay, neglect, or some other fault;
  2. the conduct of another party has been vexatious, frivolous, or abusive; or,
  3. there are exceptional circumstances that make it unjust to deprive the successful party of costs.

The panel may order one party to pay the legal costs of another party in an appeal.

In assessing legal costs under sections 6(a) or (b), the panel will generally be guided by the principles set out in Supreme Court Civil Rule 14-1(3). Cost awards made pursuant to section 6(c) of the Appeal Regulation (exceptional circumstances) will generally be less than cost awards under sections 6(a) or (b).

In awarding legal costs, the panel will consider all of the circumstances, including:

  1. the complexity of the appeal and the difficulty or the novelty of the issues involved;
  2. the skill, specialized knowledge and responsibility required of the lawyer;
  3. the amount involved in the appeal;
  4. the time reasonably expended in conducting the appeal;
  5. the conduct of the party that tended to shorten, or to unnecessarily lengthen, the duration of the proceeding;
  6. the importance of the appeal to the party and the result obtained; and,
  7. the benefit to the party of the services rendered by the lawyer.

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