Appeal backlogs and delays, appointee terms, reconsideration powers … some of the issues facing Canadian workers’ compensation appeals tribunals. On Tuesday, the Ontario Ombudsman’s 2014-2015 Annual Report highlighted two matters of concern regarding the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
Ontario – experience & delays
First (p. 45), the impact of the government’s “10-year rule”, a 2006 cabinet directive limiting appointments to adjudicative or regulatory agencies to a ten-year term. Disallowing the reappointment of many long-term members in 2016 could both potentially create shortages on some tribunals and decrease the average level of needed experience. The Ombudsman cites a recent Society of Ontario Adjudicators and Regulators study on the impact of the rule on the WSIAT: “The loss of half of their adjudicators means that the average levelof experience will decline from approximately 10 years to approximately three. This means that half of their adjudicators will have no experience with that tribunal.”
Second (p.46), the Ombudsman addressed delays faced by injured workers in having their appeals heard by the Tribunal, and the human cost in anxiety and financial hardship. The report notes that most who appeal to the Tribunal have already spent years waiting for adjudication from the WSIB, and most will wait another 2 or more years to be heard by WSIAT. ”In looking into the cause of the delays, we determined that appeals from the WSIB had doubled in recent years, while the number of adjudicators for hearing appeals had been reduced.” The Ombudsman Office will continue monitoring the situation and Ministry of Labour response before deciding if a system investigation is called for.
(The WSIAT Chair’s Mar. 30 message “The Appeals Cup Overflow” expressed similar concerns about the term limits and the current active appeals inventory of 9,000 cases)
Newfoundland – ending the backlog?
In July the government added a full-time commissioner to the NL Workplace Health, Safety and Compensation Review Division to help achieve its goal of eliminating the appeals backlog by the end of the fiscal year. As reported by a CBC News investigation in 2014, the 60-day limit mandated by law for completing an appeal was being met only about half the time, with decisions averaging 6-7 months.
New Brunswick – new appeals timeframe
Training and hiring delays have now pushed back the May 2015 opening of NB’s independent workers’ compensation appeals tribunal to the end of summer. Legislation establishing the tribunal was passed last year, following media reports about WorkSafeNB claims adjudication practices. Although almost 90% of the Board’s rejections were overturned by the previous appeals process, appeals in 20120 took an average 200 days to be heard. The new law sets a maximum 90 days to hear an appeal and write a decision – and 30 days for that decision to be implemented.
For SCC consideration
In June the Supreme Court of Canada granted leave to appeal the BC Court of Appeal ruling Fraser Health Authority v Workers’ Compensation Appeal Tribunal, which determined that WCAT does not have the power to reconsider a decision on the basis that the decision is patently unreasonable. Among issues raised: whether the WCAT has the power to reconsider its own previous decisions, what constitutes “jurisdictional error”, how a regulatory tribunal considers highly technical evidence – can it adopt a “common sense” approach? (BC WCAT summary of Court of Appeal decision)