• 8.1 Dismissing Appeals
• 8.2 Extending the Time to Appeal
  • 8.2.1 Application for Extension of Time
  • 8.2.2 Special Circumstances Precluded
    • 8.2.2.1 Representative Acts or Omissions
  • 8.2.3 Injustice
• 8.3 Stay of Decision under Section 294
  • 8.3.1 Application for Stay of Decision
• 8.4 Suspension of an Appeal
  • 8.4.1 Suspension for Referral of an Undetermined Matter Back to the Board under Section 297(3)
  • 8.4.2 Suspension to Obtain Independent Health Professional Advice under Section 302
  • 8.4.3 Suspension for Referral to the Chair for Lawfulness of Policy under Section 304
  • 8.4.4 Suspension Pending a Board Decision on a Related Matter under Section 305
• 8.5 Withdrawals

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WCAT decisions are of two types:  merit decisions which involve the weighing of evidence and argument in relation to the primary issues on appeal, and summary decisions which are of three types. A summary decision may be procedural, that is, concerned with the steps or processes in the appeal; it may be an interim decision, such as suspending an appeal; or it may provide a final outcome such as dismissing an appeal without a decision on its merits [s. 31(1) ATA].

Summary decisions may be provided by a formal numbered decision or by letter. They may be issued by the registrar’s office or by a panel. They may concern:

1. an application for an extension of time to appeal to WCAT;
2. a request for a stay of a Board decision pending the outcome of the appeal;
3. jurisdictional issues, such as whether a party has standing to initiate the appeal, or whether the issue is one within WCAT’s jurisdiction;
4. dismissal of an appeal;
5. suspension of an appeal; or,
6. an appellant’s request to withdraw an appeal.

8.1 Dismissing Appeals

Section 31(1) of the ATA allows WCAT to dismiss all or part of an appeal in a summary manner if any of the following apply:

1. the appeal is not within WCAT’s jurisdiction;
2. the appeal was filed out of time;
3. the appeal is frivolous, vexatious or trivial or gives rise to an abuse of process;
4. the appeal was made in bad faith or filed for an improper purpose or motive;
5. the appellant failed to diligently pursue the appeal or failed to comply with a WCAT order;
6. there is no reasonable prospect that the appeal will succeed;
7. the substance of the appeal has been appropriately dealt with in another proceeding.

Section 31(2) of the ATA requires WCAT to give the appellant an opportunity to file a written submission or otherwise be heard before dismissing an appeal. Section 31(3) of the ATA requires WCAT to issue a written decision, with reasons, for dismissing an appeal.

8.2 Extending the Time to Appeal

There is a 30‑day time limit for appealing a decision of a review officer to WCAT [s. 293(1)]. There is a 90‑day time limit for appealing a decision of a Board officer concerning a prohibited action complaint (under section 50) or concerning a reopening on application (under section 125(1)) to WCAT [s. 293(2)] (5.1). WCAT adds eight days to the time to allow for mailing [s. 344(2)].

The chair has the discretion to extend the time to appeal under section 293(3). In order for the chair to exercise that discretion in favour of extending the time to appeal, an applicant must meet, at a minimum, the following two requirements:

1. the chair must be satisfied that special circumstances precluded the filing of the appeal on time; and,
2. the chair must be satisfied that an injustice would result if the extension were not granted.

In considering whether to exercise the discretion to extend the time to appeal, the chair may also consider other relevant factors, such as whether there is prejudice to the respondent and whether the delay is so long that WCAT cannot reasonably or fairly decide the appeal.

A decision to allow or deny an extension of time to appeal to WCAT is final and conclusive.

Practice Directive

8.2.1 Application for Extension of Time

WCAT will not process an application for an extension of time to appeal where the notice of appeal, letter or other written method of initiating the appeal, does not meet the requirements of section 292(2).

An application for an extension of time to appeal will normally be considered on the basis of written submissions. Disclosure of the Board file will not usually be provided. WCAT will invite the respondent to participate (6.5).

Applicants must provide reasons for not appealing within the statutory time frame. Applicants must also provide reasons for any further delay after the expiry of that time. If the applicant fails to provide these reasons, the applicant will be required to provide or complete the reasons within 21 days.

If WCAT does not receive the completed reasons by the due date, the appeal will be closed as incomplete and WCAT will take no further action. If the applicant later wishes to pursue the appeal, they must again apply for an extension of time to appeal.

8.2.2 Special Circumstances Precluded

Special circumstances must preclude filing the appeal on time. The dictionary definition of “special” includes “unusual,” “uncommon,” “exceptional,” and “extraordinary.”  In the context of section 293(3)(a), “preclude” does not mean “absolutely prevent.”  It may include “prevent,” “hinder,” “impede,” or “delay.”  When deciding an extension of time application, panels will not consider the merits of the appeal.

The special circumstances test in section 293(3)(a) is only applicable to the failure to file the appeal on time. It does not apply to any subsequent delay after the time to appeal expired.

In determining whether special circumstances precluded the filing of the appeal on time, the chair may consider a number of factors, including:

1. the date on which the applicant actually received the decision under appeal;
2. if there was a delay in the applicant receiving the decision, the reason for the delay;
3. whether the applicant was aware of the right to appeal and the time limit for initiating the appeal;
4. whether there was a clear and significant error of fact, law, or policy in the decision of which the applicant could not reasonably have been aware;
5. whether the applicant has obtained significant new evidence that would support the appeal which, when the time limit to appeal expired, either did not exist or existed but was not discovered and could not through the exercise of reasonable diligence have been discovered; and,
6. whether the applicant took all reasonable steps to ensure a timely appeal.

8.2.2.1 Representative Acts or Omissions

When considering whether acts and omissions of a representative constitute special circumstances that precluded the filing of the appeal on time, the overriding consideration is whether the applicant acted reasonably in all of the circumstances.

In determining whether acts and omissions of a representative constitute special circumstances that precluded the filing of an appeal on time, the chair may consider a number of factors, including:

1. whether, within the relevant appeal period, the applicant instructed a representative to appeal;
2. whether the applicant was in any way responsible for the delay;
3. any other relevant circumstances particular to the appeal.

8.2.3 Injustice

In order to extend the time to appeal, an injustice must result from the refusal to grant the extension (s. 293(3)(b)). “Injustice” is given a wide meaning, including “unfairness,” “lack of justice,” or “wrong.”  In determining whether “an injustice would otherwise result,” the chair may consider a number of factors, including:

1. the significance of the matter under appeal (i.e. the magnitude or importance of the issues under appeal);
2. the length of the delay;
3. the reasons for any delay beyond the expiry of the time limit to appeal;
4. whether the applicant acted promptly to initiate an appeal when they became aware of the decision, the time limit for appealing, or the significant new evidence that would support the appeal; and,
5. any other relevant circumstances particular to the appeal.

The WCAT extension of time to appeal application form is accessible on the WCAT website at: www.wcat.bc.ca.

8.3 Stay of Decision under Section 294

Unless WCAT orders otherwise, an appeal to WCAT does not operate as a stay, or affect the operation, of the decision or order under appeal [s. 294].

RULE:   A stay is an extraordinary remedy. WCAT will not process a stay application unless the applicant has completed a notice of appeal within the time limit to appeal which meets the requirements of s. 292(2)

When determining whether to issue a stay, panels will consider:

1. whether the appeal, on its face, appears to have merit;
2. whether the applicant would likely suffer serious harm if the stay were not granted (for example, loss of a business);
3. which party would likely suffer greater harm or prejudice from granting or denying a stay; and,
4. in the context of occupational health and safety, whether granting a stay would likely endanger worker safety.

This list is not exhaustive and WCAT may take other factors into account.

8.3.1 Application for Stay of Decision

Practice Directive

WCAT will generally deal with an application for a stay as a preliminary matter on the basis of written submissions. Disclosure of the Board file will not usually be provided. The applicant must be a party to the appeal.

The applicant is required to provide written submissions in support of the stay application together with the notice of appeal or within seven days from the date WCAT received the notice of appeal. WCAT will send the submissions to the respondents who have 14 days to respond. The applicant will then have five days to provide a rebuttal. The panel will issue a written decision on the stay application as soon as practicable once submissions are complete.

If the applicant fails to provide written submissions in support of their stay application within seven days of the date WCAT received their notice of appeal, or the applicant’s submission does not address the stay application, WCAT will deny the stay application and process the appeal as usual.

The WCAT application for a stay form is accessible on the WCAT website at: www.wcat.bc.ca.

8.4 Suspension of an Appeal

The WCA authorizes the chair to suspend appeals in four situations. In three of the situations, a suspension results in the matter automatically being returned to WCAT for further action. In the fourth, unless the appellant asks WCAT to proceed within 30 days of a further Board decision, WCAT will close the appeal and take no further action.

A suspension under the WCA interrupts the statutory 180‑day time frame for decision making. A suspension is an interim decision that is not final and conclusive.

See 3.4.1 with respect to suspension under s. 45(4) ATA.

8.4.1 Suspension for Referral of an Undetermined Matter Back to the Board under Section 297(3)

Where a panel considers there to be a matter that should have been determined by the Board but was not, the panel may refer that matter back to the Board for determination and suspend the appeal until the Board makes that determination. Before referring the matter back, the panel may make findings of fact or resolve other issues. The panel will include these in the referral which will be issued as a numbered decision.

As this referral is an interim decision, the panel will not make any final decisions on other matters raised by the appeal before it. However, where the panel is considering appeals from more than one decision, the panel may sever unrelated appeals from the referral and make final decisions on them.

If a panel refers a matter back to the Board under section 297(3), the panel must take the Board’s determination into account in deciding the original appeal. The parties may not request a review of that determination by a review officer [s. 297(4)]. The panel has jurisdiction to deal with the whole matter, including the issues arising from the Board’s new determination. The panel must make a decision (that is, confirm, vary or cancel) both on the matter which was the subject of the original appeal, as well as on the new Board determination that resulted from the referral.

When WCAT receives the Board’s determination requested under section 297(3), WCAT will reactivate the suspended appeal. WCAT will notify a non-participating respondent of the Board’s new determination and will provide the parties with the opportunity to make submissions. If the Board’s determination is with respect to another claim, any new respondent will also be invited to participate. If the Board makes other new decisions which result from the referral but do not directly address the matter referred, they are reviewable by a review officer.

8.4.2 Suspension to Obtain Independent Health Professional Advice under Section 302

When a panel decides to retain an independent health professional to provide advice in respect of a specific appeal under section 302, WCAT will suspend the appeal when the panel provides the registrar’s office with the completed terms of reference for the health professional. WCAT will reactivate the suspended appeal when it receives the health professional’s report [s. 302(7)] (see 11).

8.4.3 Suspension for Referral to the Chair for Lawfulness of Policy under Section 304

If a panel considers that a policy of the board of directors should not be applied on the ground that the policy is so patently unreasonable that it is not capable of being supported by the WCA and its regulations [s. 304(1)], the panel must refer that issue to the chair. WCAT must suspend the appeal until the chair or the board of directors, as the case may be, makes a determination. If the chair refers the issue to the board of directors, the chair must also suspend any other pending appeals that the chair considers to be affected by the same policy until the board of directors makes a determination [s. 304(5)(b)] (see 9).

8.4.4 Suspension Pending a Board Decision on a Related Matter under Section 305

On the appellant’s application, or on the chair’s own initiative, WCAT may suspend an appeal if a Board’s decision respecting a related matter is pending [s. 305(1)], either before the Board or before a review officer.

A related matter is one which deals with similar issues in the same file, or another related file for the same appellant, or one which may have a direct impact on the appeal. A pending matter is one which the appellant has already initiated, or one which the Board or the Review Division is in the process of deciding.

Practice Directive

An appeal may be suspended under section 305(1) at any time during the appeal proceedings.

If WCAT is considering suspending an appeal under section 305(1) on its own initiative, WCAT may seek further submissions from the parties. Prior to suspending the appeal, WCAT should be satisfied that:

1. there is a pending decision of the Board or of a review officer;
2. the pending decision involves a determination of a matter that is related to the matter under appeal.

Once WCAT suspends an appeal under section 305(1), WCAT will notify all participating parties and clearly identify the pending decision of the Board or review officer. When an appeal is suspended, a deferral of compensation payable due to a review officer’s decision continues.

At any time before the Board or review officer issues the pending decision, the appellant may ask WCAT to continue the appeal. WCAT may grant the request or may continue the suspension [s. 305(3)]. WCAT cannot continue the appeal on its own initiative or at the request of the respondent.

When the Board or review officer, as the case may be, issues their decision on the related matter, the appellant has 30 days after the date of the decision to ask WCAT to proceed with the suspended appeal [s. 305(2)]. WCAT must then reactivate and continue the appeal. If the appellant does not ask WCAT to proceed with the suspended appeal within 30 days, 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 continue the appeal [s. 305(4) and 8.2 to 8.2.3].

The appellant must ask WCAT to reactivate the suspended appeal within 30 days even if the appellant intends to appeal or request a review, as the case may be, of the new decision. Where the new decision was issued by the Board, the appellant may ask WCAT to re-suspend the appeal after they have filed their request for review with the Review Division.

8.5 Withdrawals

RULE:   An appellant may withdraw an appeal by right at any time before the appeal has been assigned to a panel.

After assignment, WCAT will decide whether to allow a request for withdrawal. The request for withdrawal will normally be granted.

Requests for withdrawal must be made in writing, or in person at an oral hearing.

This rule applies to appeals that have met the requirements of section 292 (see Rule 5.1.3.1 with respect to withdrawal of appeals that have not met the requirements of section 292). Withdrawing an appeal does not extend the time limit for filing the appeal. An appellant who withdraws an appeal before the appeal has been assigned to a panel, and who later wishes to pursue the appeal must apply for an extension of time to appeal (see section 293(3)).

In deciding whether to accept a request for withdrawal after assignment of the appeal to a panel, the panel may consider whether there is evidence of:

1. fraud or misrepresentation on the part of the appellant;
2. an error of law or policy within the scope of the appeal which resulted in the appellant being entitled to benefits they would not be entitled to but for the error; or
3. any other circumstance that could result in an injustice.

Parties to a withdrawn appeal may request reimbursement of expenses associated with obtaining or producing evidence that was submitted to WCAT with respect to the appeal. In deciding whether to reimburse the expenses, WCAT will apply the criteria set out in 16.1.3.

WCAT’s decision to accept the withdrawal of an appeal that has met the requirements of section 292(2) is final and conclusive. If the appellant later wishes to pursue the appeal, they must apply for reconsideration of the withdrawal decision (20.2 to 20.3.2).

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