• 18.1 Introduction
• 18.2 Jurisdiction
  • 18.2.1 General
  • 18.2.2 Definition of Court and Action
  • 18.2.3 Scope of Determination(s)
• 18.3 Who May Apply
  • 18.3.1 Deceased Person – Standing of Estate
  • 18.3.2 Who May Respond
• 18.4 Preliminary Matters
  • 18.4.1 Court Action Prohibited (Statutory Bar)
  • 18.4.2 Application for Compensation
  • 18.4.3 Registration with the Board as an Employer
• 18.5 How to Apply
  • 18.5.1 Initiating an Application
    • 18.5.1.1 Notice of Application Must Be In Writing
    • 18.5.1.2 Incomplete Notice of Application
    • 18.5.1.3 Determination(s) Requested
  • 18.5.2 Authorizations
    • 18.5.2.1 For Representatives to Act
    • 18.5.2.2 For WCAT to Obtain Evidence
  • 18.5.3 Service and Delivery of Documents
    • 18.5.3.1 Service and Delivery of Documents by WCAT to Parties
    • 18.5.3.2 Service and Delivery of Forms, Correspondence, Submissions, and Evidence by Representatives on Other Participants
    • 18.5.3.3 Service and Delivery of Forms, Correspondence, Submissions, and Evidence by Parties to WCAT
• 18.6 Registration of Applications
  • 18.6.1 Registration
  • 18.6.2 Acknowledging Receipt
  • 18.6.3 Representatives
  • 18.6.4 Board Notification
    • 18.6.4.1 Board Subrogation to Rights of Worker to Pursue Court Action
    • 18.6.4.2 Disclosure of Board Claim Files
  • 18.6.5 Notification of Respondents
    • 18.6.5.1 Participating Respondents
    • 18.6.5.2 Non-Participating Respondents
  • 18.6.6 Notification of Interested Person(s)
  • 18.6.7 Participating Person/Representative Group
• 18.7 Preliminary Processes
  • 18.7.1 Usual Processes Apply
  • 18.7.2 Streaming: Specialty
  • 18.7.3 Joining Applications
    • 18.7.3.1 Related Court Actions
    • 18.7.3.2 Related Appeals
• 18.8 Order of Processing
  • 18.8.1 General
  • 18.8.2 Holding Period
  • 18.8.3 Request for Priority Processing
• 18.9 Summary Decisions
  • 18.9.1 Stay of Decision
  • 18.9.2 Withdrawals
    • 18.9.2.1 Withdrawal by Applicant
    • 18.9.2.2 Deemed Withdrawal
    • 18.9.2.3 Effect of New Application
• 18.10 Written Submissions and Evidence
  • 18.10.1 Transcripts of Examinations for Discovery
  • 18.10.2 Copies of WCAT Decisions, Board Policies and Court Decisions
• 18.11 Oral Hearings
• 18.12 Confidentiality
• 18.13 Expenses and Costs
• 18.14 WCAT Determination(s)
  • 18.14.1 Effect of Determination(s) on Court Action
  • 18.14.2 Post-Determination

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18.1 Introduction

The Workers Compensation Act in section 311 gives WCAT the power to make determination(s) and provide a certificate to a court in certain matters which are relevant to a court action and that are within the jurisdiction of the Board (3.1.5). WCAT also provides reasons for its determination(s).

18.2 Jurisdiction

18.2.1 General

In order for WCAT to certify a matter to court, there must be a court action concerning a personal injury, death, or a disability caused by occupational disease. If there is no court action, WCAT has no jurisdiction to determine any matters and there cannot be an application for certification to court.

As was pointed out by the BC Supreme Court, an application “… is not a separate proceeding. It is a step within the action that is mandated by legislation.” (Hommel v. Cooke et al., 2005 BCSC 658).

Thus, the nature of a proceeding for a certification to court is two-fold. While it is a step in the underlying court action, the Act states that it is also treated as an appeal. The Act provides that Part 7 (“Appeals to Appeal Tribunal” including the provisions dealing with WCAT, appeal rights, appeal procedure, and other general items) applies to certificates to court as if the proceedings were an appeal. The only provision of Part 7 of the Act that does not apply is the time for making a final decision on the application (17.1.1).

18.2.2 Definition of Court and Action

The Act provides that “court” includes the Civil Resolution Tribunal. As well, the Act provides that “action” includes proceedings brought before the Civil Resolution Tribunal. Typically, aside from the Civil Resolution Tribunal, applications involve court actions before the Provincial Court of B.C. or the Supreme Court of B.C. A court may also include a court outside of the province, such as the equivalent superior trial court in another province.

18.2.3 Scope of Determination(s)

WCAT may determine any matter that is relevant to the court action and that is within the jurisdiction of the Board. This may include determining, at the time the cause of action arose:

1. was the party a worker,
2. if so, did any injury, death or disability arise out of, and in the course of, the worker’s employment,
3. was the other party an employer engaged in an industry within the meaning of the compensation provisions,
4. if so, did any action or conduct of the employer, or its servant or agent, which caused the alleged breach of duty of care, arise out of and in the course of employment within the scope of the compensation provisions,
5. was the other party a worker,
6. if so, did any action or conduct of that worker, which caused the alleged breach of duty of care, arise out of and in the course of employment within the scope of the compensation provisions.

WCAT can make determinations about persons who have not applied for compensation from the Board as a worker or dependent or who have not registered with the Board as an employer.

18.3 Who May Apply

The Act provides that the court, on its own motion, or a party to the court action may request that WCAT make a determination(s).

Although the Act states that the matter determined by WCAT must be within the jurisdiction of the Board, there is no requirement that an applicant have an application for compensation or be receiving benefits from the Board. As well, there is no requirement that an applicant be registered with the Board as an employer (18.4).

More than one party to the legal action may request that WCAT make a determination(s) and initiate an application for a certificate to court. Alternatively, a respondent may identify additional issues for certification on an application in which they are participating (18.6.5.1).

18.3.1 Deceased Person – Standing of Estate

The estate of a deceased worker or employer may initiate, participate in, or continue an application for a certificate to court. If the identity of the estate’s representative needs to be established, the documentation noted in item #4.6 is required (4.6).

18.3.2 Who May Respond

A person who has standing to initiate an application for a certificate to court has standing to respond, that is, be a respondent, to the application. In other words, any other parties to the court action may respond to an application by another party to the court action.

18.4 Preliminary Matters

18.4.1 Court Action Prohibited (Statutory Bar)

Section 127 of the Act prohibits a worker (or family member or dependant) from filing a court action against their employer, another employer, or another worker for a breach of duty of care or other cause of action, for injury, disablement, or death, where the action or conduct causing the breach of duty of care or other cause of action arose out of and in the course of employment.

While WCAT does not determine whether a court action is prohibited or “barred” under section 127, a party may apply to the court to determine whether the action should be dismissed based on section 127.

As a preliminary matter, WCAT does not require that a defence under section 127 be raised in the court action for an application to proceed. However, raising such a defence may still be necessary for the purposes of the court action.

18.4.2 Application for Compensation

As noted above in item #18.4, there is no requirement that an applicant have an application for compensation or be receiving benefits from the Board. However, plaintiffs (or those parties initiating the court action) should consider filing an Application for Compensation with the Board on a provisional basis pending the outcome of any application to WCAT. This protects the plaintiff’s (or party’s) right to proceed with a workers’ compensation claim should the court action ultimately be prohibited under section 127. As well, there are time limits for filing an application for compensation contained in the Act [s. 151).

18.4.3 Registration with the Board as an Employer

As noted above in items #18.2.3 and #18.3, there is no requirement that an applicant be registered with the Board as an employer.

18.5 How to Apply

There is no time limit to apply for a certificate. WCAT will accept an application any time after a court action is commenced.

RULE: An application must be initiated by filing a notice of application with WCAT.

A notice of application must [s. 292(2)]:

1. be in the form authorized by WCAT’s rules. A specific application form for certificates to court is accessible on the WCAT website,
2. identify the court action, the court registry and the registration number (or other information to identify the specific level of court and associated file number), whether the court action concerns a personal injury, death, or a disability caused by occupational disease (including the date of accident, injury or death), and whether a trial or hearing date is set in the action,
3. include a copy of the Notice of Civil Claim/Notice of Claim (and any other pleadings or relevant documents) filed in the court action,
4. state the determination(s) requested and the person(s) for whom the determination(s) are sought (including their respective status (if any) in the court action),
5. include information about each party named in the court action, as well as their alleged employer (if any),
6. identify any related court action(s) (if any) arising out of the same accident/incident and whether a certificate is required for those action(s),
7. include information on the applicant’s readiness to proceed with the application (18.8.2),
8. contain the name, address and telephone number of the applicant, and if the applicant has an agent to act on their behalf in respect of the application, the name of the agent and a telephone number at which the agent may be contacted during regular business hours,
9. include an address for delivery of notices in respect of the application,
10. be signed by the applicant or the applicant’s agent, and

The applicant must send a copy of the application to the other parties in the court action, and advise WCAT that they have done so.

An agent may act on behalf of more than one applicant. In that case, the notice of application must identify each applicant that the agent acts on behalf of and the respective status of each applicant in the court action.

WCAT also seeks information on the notice of application about the applicant’s preference for the method of hearing and information to support disclosure of relevant Board claim files (if any).

If the notice of application is deficient, WCAT will allow a reasonable time for it to be corrected [s. 292(3)]. If the applicant does not correct the deficiencies within the time allowed, WCAT will close the application as incomplete and take no further action. If the applicant later wishes to pursue an application, they must make a new application.

18.5.1 Initiating an Application

18.5.1.1 Notice of Application Must Be In Writing

RULE: An applicant must initiate the application for a certificate to court in the prescribed form. This may be done by delivering, mailing, sending by facsimile transmission (fax), or sending by electronic mail or other electronic means (email) to WCAT a completed notice of application form containing the required information in English.

An applicant must meet the requirements noted in item #18.6 or WCAT will not consider an application to be initiated.

Telephone notification is not sufficient to initiate an application. WCAT will not accept telephone notice of intent to file an application.

Where the application is initiated by fax or email, it is not necessary to send WCAT the original document. Where the applicant also sends the original document, WCAT will verify the receipt of the fax or email (along with the received date) and destroy the original document. WCAT notice of application forms are accessible on the WCAT website.

18.5.1.2 Incomplete Notice of Application

RULE: Where the notice of application does not meet the requirements of item #18.6, the appellant must provide a complete notice of application within the time WCAT subsequently allows (normally 21 days).

Where an applicant does not provide the required information by the date WCAT subsequently allows, WCAT will treat the application as incomplete and as not initiated. WCAT will close the application and take no further action. If the applicant later wishes to pursue an application, they must make a new application (18.9).

18.5.1.3 Determination(s) Requested

RULE: To meet the requirements of item #18.6, it is sufficient for the applicant to provide a brief statement of the determination(s) requested. The applicant should state the determination(s) requested and the person(s) for whom the determination(s) are sought (including their respective status in the court action). If a determination is requested concerning the status of a person who is not a party to the court action, an explanation should be provided as to why this is relevant to the court action.

18.5.2 Authorizations

18.5.2.1 For Representatives to Act

RULE: Applicants or their representatives may initiate an application. The WCAT notice of application form includes authorization for the representative to act.

The WCAT authorization of representative form for applications for certificates to court is accessible on the WCAT website.

Where a party (see item #18.6.6) is represented by a lawyer (legal counsel) in the court action, WCAT will not normally require any other form of representative authorization (6.3.1). However, WCAT may require an authorization from a representative (including a lawyer) of an interested person.

18.5.2.2 For WCAT to Obtain Evidence

RULE: By signing the WCAT notice of application or notice of participation form, whether they are the applicant or the respondent, a person or entity authorizes WCAT to obtain additional evidence, such as medical records or employment records, with respect to them.

18.5.3 Service and Delivery of Documents

WCAT’s rule on the obligation of parties to advise WCAT of any change of address applies to applications for certificates to court (5.3.1). As well, WCAT’s practice directive on what steps WCAT will take when mail to a party is returned as undeliverable applies to applications for certificates to court (5.3.2).

18.5.3.1 Service and Delivery of Documents by WCAT to Parties

Section 344 of the Act sets out the principles that WCAT must apply with respect to the service and delivery of documents. WCAT’s general practice on the service and delivery of documents applies to the service and delivery of documents related to applications for a certificate to court (5.3).

18.5.3.2 Service and Delivery of Forms, Correspondence, Submissions, and Evidence by Representatives on Other Participants

RULE: All participating parties and interested person(s) who are represented must provide copies of their forms, correspondence, submissions and evidence to all other participating parties and interested person(s) at the same time as they send those documents to WCAT. The only exception to this is copies of a transcript for examination for discovery (18.10.1).

18.5.3.3 Service and Delivery of Forms, Correspondence, Submissions, and Evidence by Parties to WCAT

WCAT accepts service, delivery, and filing of forms, correspondence, submissions, documents and other evidence from parties and interested person(s), as well as their representatives through delivery, mail, facsimile transmission, or other electronic means. The latest information on how to file material with WCAT is available on WCAT’s website.

Where a form or document is filed with WCAT by fax or other electronic means, it is not necessary to send WCAT the original document. Where the party or interested person also sends the original document, WCAT will verify the receipt of the fax or email (along with the received date) and destroy the original document.

As WCAT primarily operates in an electronic environment, parties and interested person(s), particularly representatives, are encouraged to file forms, documents, submissions, and evidence to WCAT through electronic means. Further information specific to the submissions and evidence process is discussed in item #18.10.

18.6 Registration of Applications

18.6.1 Registration

The registrar’s office will register applications and screen them for compliance with preliminary requirements. When registering an application, the registrar’s office will determine whether:

1. the notice of application is complete;
2. additional information is required;
3. notification of the Board of the application is required (where it appears the Board may be subrogated, or for purposes of disclosure of any associated claim file(s));
4. the application should be placed in the holding period (18.8.2);
5. the application should be dismissed under section 31(1) of the ATA or deemed withdrawn (18.9.2.2).

18.6.2 Acknowledging Receipt

WCAT’s practice regarding acknowledgment of receipt of appeals applies to receipt of applications for a certificate to court (6.2).

18.6.3 Representatives

Section 32 of the ATA allows a party to be represented by counsel or a lay agent (6.3).

18.6.4 Board Notification

The Registrar’s office will notify the Board during the registration of an application in the circumstances outlined below.

18.6.4.1 Board Subrogation to Rights of Worker to Pursue Court Action

The Act provides that where a worker has claimed compensation, the Board is subrogated to the rights of the worker to pursue a court action [s.130(2)]. The Board has exclusive jurisdiction to determine whether to maintain an action or compromise the right of action and the Board’s decision is final and conclusive.

Where WCAT receives an application and the registrar’s office determines that the plaintiff or initiating party in the court action has received workers’ compensation benefits, WCAT will notify the Board that it appears that the Board is subrogated to the rights of the worker to pursue a court action. WCAT will ask the Board to confirm whether it has authorized the worker to pursue the court action. If the Board notifies WCAT that the court action is not authorized, WCAT may dismiss the application (see items #18.9 and #8.1).

18.6.4.2 Disclosure of Board Claim Files

As soon as practicable, WCAT must notify the Board of an application for the purposes of facilitating the Board’s obligation to provide copies of relevant claim files [s. 295(2)]. The registrar’s office will notify the Board of an application once the application is determined to be complete and valid, all necessary information is received from the parties to the court action, and any participating respondents and interested persons (if any) are identified.

The Board must, as soon as practicable, provide WCAT and any participating parties with a copy of its records respecting the matter. In applications for certificates to court, the “matter” includes any claim files established for any of the parties to the court action and for whom a determination is requested. Disclosure of the claim files for the purpose of complying with the requirements of procedural fairness is authorized under the Act as being necessary to the discharge of WCAT’s obligations (see items #1.5.3.1 and #6.4). The WCAT panel will determine the extent of disclosure to be provided to a participating interested person.

18.6.5 Notification of Respondents

WCAT will notify respondents, that is, any other party to the court action, of the application and ask them to complete and return a notice of participation if they wish to participate.

18.6.5.1 Participating Respondents

See items #6.5.1 and #1.5.3.1 of the MRPP for the entitlement of participating respondents to an application for a certificate to court.

A respondent may identify additional issues for certification by WCAT without making a separate application.

18.6.5.2 Non-Participating Respondents

If a respondent(s) does not submit a notice of participation, WCAT will provide no further information or notices concerning the application, apart from a copy of the final certificate.

18.6.6 Notification of Interested Person(s)

Other persons or entities who might be directly affected by WCAT’s determination(s) may be given notice of and standing to participate in the application, even though they are not parties in the court action.

In considering whether to notify and invite an interested person, the panel will consider whether the person’s or entity’s legal and/or financial interests are directly affected or whether the application prejudicially affects the person or entity.

Examples of an interested person or entity may include the alleged employer of a party who is alleged to have been a worker at the time of the injury, a party in a related legal action, and a potential party to a legal action arising from the same event.

The notification of the application and invitation to participate for interested person(s) will be completed by the Registrar’s office at the direction of the assigned panel.

If an interested person(s) does not submit a notice of participation, WCAT will provide no further information or notices concerning the application, apart from a copy of the final certificate and determination(s).

18.6.7 Participating Person/Representative Group

See item #6.6 for WCAT’s authority to request any person or representative group to participate in an application.

18.7 Preliminary Processes

18.7.1 Usual Processes Apply

WCAT will follow its usual processes for considering appeals as set out in this MRPP as far as they are applicable. Where there is a different process for applications for certificates to court, WCAT’s processes are outlined in this item.

18.7.2 Streaming: Specialty

The registrar’s office will assign each application to the specialty stream and each application will be assigned to a panel at the outset (7.1). The panel will determine the appeal method, who to notify and invite to participate, and other matters.

18.7.3 Joining Applications

Item #7.2 discusses WCAT’s authority to order that related matters be considered together in one hearing under the Act, as well as WCAT’s authority under the Administrative Tribunals Act to combine matters, hear them at the same time, or one immediately after the other, or delay processing one or more matters until another of them has been determined.

18.7.3.1 Related Court Actions

Practice Directive

Where there is a related court action arising from the same event or incident, WCAT will normally notify the parties to that action, as well as any other persons or entities as directed by the assigned panel, about the current application and invite them to either participate in the current application or to make a separate application (such as where there are additional determination(s) not requested in the current application).

Where a separate application is initiated, WCAT will normally process them together. Generally, one panel will be assigned to the applications and one decision addressing all applications and determinations requested will be issued. However, WCAT will issue a separate certificate for each court action.

A related court action may include any action filed against the Insurance Corporation of British Columbia (ICBC) under Part 7 of the Insurance (Vehicle) Regulation.

18.7.3.2 Related Appeals

Where there is an appeal filed or pending before WCAT that addresses the same matter as the application, one panel may consider both matters (the appeal and the application) depending on such factors as whether both matters raise similar issues, their respective methods of hearing, their stages in the appeal and application process, and the effect on the statutory time frame for making a decision on the appeal.

18.8 Order of Processing

While no statutory time frame applies to the decision making process for applications, WCAT recognizes that an orderly process is required to provide timely decisions to applicants, while being cognizant of WCAT’s overall resources and obligations under the Act. As well, WCAT respects that the parties may require time to collect the evidence and make submissions and/or prepare for an oral hearing in support of their application. Moreover, given that the application is a step in a court action being heard by another body, there may be timelines, rules, and processes (including settlement discussions, dispute resolution, or mediation) in the court action causing the parties to either require priority processing of the application, to put the application on hold for a specified time period, or to withdraw the application.

18.8.1 General

In order to achieve orderly processing of applications, WCAT will distinguish between applications in which the parties are ready to proceed and those in which the parties wish to defer providing evidence and submissions on applications until a later date. WCAT will allow parties to proceed with their applications, or to place their applications “on hold” if additional time is required before proceeding. If a party fails to “reactivate” the application after the holding period has expired, WCAT may deem the application withdrawn (18.9.2.2).

Also, WCAT will consider requests for priority processing in exceptional circumstances (18.8.3).

In general, WCAT will focus its attention on applications where the applicant is ready to proceed. The position of an application in WCAT’s processing queue will generally be based on the date of advice from the parties that they are ready to proceed, irrespective of the date the application was initiated.

In processing applications where the parties advise that they are ready to proceed, WCAT cannot guarantee that the application will be immediately dealt with, as the Registrar’s office must take into account the volume of priority applications, the overall volume of applications, and the volume of statutory time-frame appeals and other applications.

18.8.2 Holding Period

Practice Directive

WCAT may put applications on hold where the parties are not ready to proceed with the application, either on a voluntary basis or on WCAT’s initiative where a party has failed to respond to WCAT’s request for submissions. However, the following guidelines apply and WCAT may deem an application withdrawn after the expiry of the holding period.

As well, the holding period should not be used to seek additional time periods of short duration in order to gather evidence or conduct examinations for discovery, when WCAT has requested submissions. In that case, the party should request additional time for submissions with reasons, WCAT will consider those reasons and WCAT will set time frames for the further processing of the application.

How to place an application on hold

An application may be placed on hold in the following circumstances:

1. By applicant when new application made

When an application is made, the applicant will be asked to identify whether the application should be considered on hold, or whether WCAT should proceed with inviting submissions. The applicant will not need to provide reasons. Only the applicant has the right to request that the application be placed on hold without reasons when the application is made.

2. By applicant at any time during processing of application

As well, at any time during the processing of an application, the applicant may request the application be put on hold. However, as the processing may have already begun, the applicant will be asked for reasons to support their request.

3. By respondent at any time during processing of application

The respondent may request that an application be placed on hold once it is initiated and considered complete; however, the respondent must provide reasons for the request, as well as state the time required. Consideration will be given to factors such as the date scheduled for a further examination for discovery, or the dates on which additional evidence was requested and the reasons for delay in obtaining such evidence.

4. By WCAT

An application may be placed on hold by WCAT if:

1. an applicant fails to provide their written evidence and submissions within 21 days of being requested by WCAT to do so, and does not request additional time; or
2. an applicant fails to provide their evidence and submissions within the additional time granted by WCAT.

Objections to an application being placed on hold

Where a party has requested that an application be placed on hold, the other party may make written submissions objecting to this on the basis that the other party is not exercising reasonable diligence in pursuing the application.

In considering such a request, WCAT may ask the other party to advise of the steps taken to prepare for the application and any reasons for delay. Consideration will be given to the amount of time which has elapsed since the application was initiated, and the time when WCAT will likely be able to proceed with the application.

Application confirmed on hold and further steps

If an application is placed on hold, WCAT will confirm this in writing and will defer the further processing of the application, including scheduling of an oral hearing or requesting written submissions concerning the application.

The application will be placed on hold for an initial period of one year. During this time, it is open to the parties to advise WCAT at any time that they are ready to proceed (reactivation of the application) or whether the application should be deemed withdrawn (18.9.2.2). During this initial period, WCAT will not make any contact with the parties and the onus is on the parties to contact WCAT if their situation changes and they are ready to proceed or need to withdraw the application.

After the initial holding period expires, WCAT will inquire with the applicant as to whether they are ready to proceed (reactivation of the application) or whether the application should be put on hold for a further year. If a further holding period is required, reasons should be provided. If no response is received, WCAT will deem the application withdrawn (18.9.2.2).

After the expiry of the second holding period, WCAT will notify the applicant that the application will be deemed withdrawn unless submissions are received within 21 days (18.9.2.2). Submissions should address whether the application should be re-activated, whether there are exceptional circumstances warranting a further holding period (as opposed to a new application), or whether the application should be deemed withdrawn. If no response is received, WCAT will deem the application withdrawn.

Reactivation

If a party advises that they are ready to proceed with the application, it is reactivated and WCAT will proceed with the application. The position of an application in WCAT’s processing queue will generally be based on the date the parties advise parties that they are ready to proceed, irrespective of the date the application was initiated.

18.8.3 Request for Priority Processing

WCAT may give priority to an application where exceptional circumstances are demonstrated and the parties are ready to proceed.

Where a party is requesting priority processing for exceptional circumstances based on an impending trial, court, or hearing date or where a determination(s) is required for pre-trial purposes, the party should make such a request a minimum of 8 months prior to that trial, court, or hearing or prior to the date that the determination(s) is required. WCAT may grant or deny such a request based on factors outlined in item #18.8.1, as well as the need to leave adequate time for the submissions and/or WCAT hearing process, as well as for WCAT to render its determination(s). If the request is not made within the minimum time period, WCAT will generally deny the request.

18.9 Summary Decisions

The guidelines in item #9 of the MRPP on summary decisions apply to applications. This includes WCAT’s authority to dismiss all or part of an application. However, as there is no time limit for applying for a certification, the guidelines on extending the time to appeal do not apply.

18.9.1 Stay of Decision

As noted in item #8.3, unless WCAT orders otherwise, an application does not operate as a stay or affect the operation of a decision or order under appeal. While there is no “decision” or “order” under appeal in an application to WCAT for a certification to court, there may be decisions or orders in an associated Board compensation or other files. In those circumstances, unless WCAT orders otherwise, the filing of an application does not operate as a stay or affect the operation of those decisions or orders.

As well, once an application is filed with WCAT, it does not automatically operate as a stay of the court action. It is up to the parties to the court action to apply to the court for a stay of proceedings.

18.9.2 Withdrawals

18.9.2.1 Withdrawal by Applicant

An applicant may withdraw an application at any time. This does not affect the right of the applicant (or any other party to the legal action) to make a new application in the future, provided that the court action is in process (18.9.2.3).

18.9.2.2 Deemed Withdrawal

WCAT will not dismiss an application on a summary basis due to a failure to diligently pursue the application. Instead, the holding period may be utilized (18.8.2).

However, if the party fails to respond to WCAT’s notice upon the expiry of the initial or any additional holding period, WCAT will deem an application withdrawn.

Following any deemed withdrawal, it will remain open to any party to the court action or the court to initiate a new request to WCAT for a certificate provided that the court action is in process (18.9.2.3).

18.9.2.3 Effect of New Application

When a new application is made after the original application was withdrawn by a party or WCAT deemed the original application withdrawn, the new application is treated as a new one for the purposes of the order of processing (18.8).

18.10 Written Submissions and Evidence

If a panel decides that an application will proceed by written submissions, the panel will review any Board file(s), written evidence and argument submitted by the parties and interested person(s), and any further evidence the panel obtains (see item #11 on evidence and items #13.2 and #14.7 on new evidence obtained by the panel).

As applications are placed in the specialty stream, the panel will decide the procedure and due dates to be set for obtaining submissions and/or evidence.

All participating parties and interested person(s) who are represented must provide copies of their forms, correspondence, submissions and evidence to all other participating parties and interested person(s) at the same time as they send those documents to WCAT (18.5.3.2).

Evidence may be submitted in any form including handwritten statements of witnesses, business records, sworn affidavits, or transcripts of evidence given under oath at an examination for discovery (18.10.1). Evidence and submissions should not contain irrelevant personal information and identifiers, particularly of interested persons who are not parties to the court action (13.3).

RULE: An application will be placed on hold if an applicant fails to provide their written evidence and submissions within any timelines set by WCAT and does not request additional time; or an applicant fails to provide their evidence and submissions within the additional time granted by WCAT (18.8.2).

18.10.1 Transcripts of Examinations for Discovery

Evidence in an application may be submitted in the form of a transcript of evidence given under oath at an examination for discovery.

The discovery process generally occurs at the Supreme Court of BC (or an equivalent superior court outside of B.C.) and is a way for the parties to discover the other side’s view of what happened in the case. The examination for discovery is a meeting where one party asks an opposing party a series of questions. A court reporter attends and the Supreme Court of B.C. (or equivalent) has rules about how to arrange the examinations, what questions may be asked, and how to obtain a transcript (or written record of the questions and answers given) of the examination for discovery.

RULE: Participating parties to the court action must provide WCAT with a complete copy of a transcript of an examination for discovery if one is conducted in the legal action. WCAT accepts electronic copies of the transcript. However, participating parties to the court action are not required to provide a courtesy copy of the transcript to any other party to the legal action or to a participating interested person(s). Participating parties are responsible for obtaining their own copy of the transcript (18.5.3.2).

If there are participating interested person(s) in the application, WCAT will notify the person examined, or their authorized representative, that the examination may be disclosed to persons who are not parties to the legal action. WCAT will give the person examined an opportunity to request that WCAT sever material from the transcript on the basis that it is irrelevant and involves a significant privacy concern (15).

Once submissions are obtained on whether material should be severed or not, WCAT may request the party submitting the transcript to provide a copy of the transcript in full to each participating interested person(s) or WCAT will provide a redacted copy to the participating interested person(s).

18.10.2 Copies of WCAT Decisions, Board Policies and Court Decisions

WCAT does not require copies of previous WCAT decisions and/or WorkSafeBC policies to be included with any written submissions. A correctly identified citation of the relevant decision(s) and/or policy is sufficient.

Citations from publicly accessible website should be provided for court decisions, or copies should be provided of the court decisions.

18.11 Oral Hearings

If a panel decides that an application will proceed by way of an oral hearing, item #14 applies to the scheduling and procedure of that oral hearing.

18.12 Confidentiality

The confidentiality obligations and guidelines in item #15 apply to WCAT’s processing and deciding of applications. The only exception is the retention of the material once WCAT issues a certificate and determination(s) (18.4).

18.13 Expenses and Costs

Expenses and costs are normally addressed by the court in the court action. WCAT does not normally award expenses or costs in an application (16).

18.14 WCAT Determination(s)

The general principles contained in items #17.2 and #17.4.2 about the written decision apply to WCAT certificates to court.

WCAT will issue both a certificate and determination(s), provide a copy to all parties to the legal action, any identified interested person(s) or groups, and the Board.

WCAT files the certificate and determination(s) with the court, if it is based in British Columbia. If the court action is taking place outside of British Columbia, the applicant is responsible for filing the certificate and determination(s) with the appropriate court. WCAT provides a copy of the filed certification and determination(s) only to the parties to the court action.

After the certificate and determination(s) are filed with the court, WCAT makes the determination(s) and certificate publicly available. Names and other identifying information are not removed, given that court documents are publicly available.

WCAT retains the material related to the application and does not forward any material to the Board for placement on the Board’s file in relation to claims by any parties to the court action (15.1.1).

18.14.1 Effect of Determination(s) on Court Action

WCAT does not determine the effect of the certificate on the court action, particularly whether a court action is prohibited or “barred” under section 127. Following the issuance of a section 257 certificate, a party may apply to the court to determine whether the action should be dismissed based on section 127 and the findings contained in WCAT’s certificate.

18.14.2 Post-Determination

Post-determination communications should be in writing and directed to TCO. See item #20 for further information. This includes requests for additional determination(s) where WCAT has issued a certificate and determination(s) in a matter.

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