The right to a fair and speedy hearing
Injured worker appeals and wait times have greatly increased with the rise in claims denials that followed changes in benefit policies and decisionmaking practice. Changes to the appeals process at the Board have added complexity, stress and delays, resulting in a 2012 Appeals Modernization consultation and the current 2023 new Pre-hearing Process consultation.
By the end of 2017 the appeals “mountain” at the Workplace Safety and Insurance Appeals Tribunal (WSIAT) saw a median wait time to get a first hearing date of 16.6 months. With opening of the 2019 new WSIAT hearing centre in Hamilton, that wait time dropped to 9.7 months with 28% of appeals resolved at Tribunal within 9 months. (During COVID-19 the Tribunal moved primarily to electronic or written hearings).
The recently released WSIB Operational Review report (2020) confirmed the appeals process can be slow and complicated and that the delay between filing a claim with the Board and achieving a hearing at the Tribunal can create a real financial challenge for injured worker. How the Report’s recommendations on streamlining the appeals process will be implemented and impact timeliness and fairness is yet to be seen.
The availability of alternative dispute resolution remains limited.
In the current adversarial environment, both the Board and employers are more and more aggressively challenging claims and using private investigators to provide surveillance “evidence” of dubious value. This adversely affects injured workers’ access to justice, access to critical financial and rehabilitation benefits and services, and their physical and mental well-being.
The current appeal structure
Most decisions can be appealed to the WSIB’s internal Appeal Services Division. If the injured worker or employer disagrees with the decision of the Appeal Services Division, that decision in turn can be appealed to an independent review body, the Workplace Safety and Insurance Appeals Tribunal (formerly the Workers’ Compensation Appeals Tribunal). That is the final level of appeal, although the WSIAT can reconsider its own decisions. The Ontario Ombudsman can also request a reconsideration. The Supreme Court of Ontario can judicially review a decision of the WSIAT on very limited legal grounds. Though rare, the Supreme Court of Canada has ruled on issues of jurisdiction and constitutionality – such as the 2003 chronic pain appeal decision (Nova Scotia (Workers’ Compensation Bard) v Martin & Laseur).
- IWC. 2023 Jan. 13. Submission to WSIAT’s New Pre-Hearing Process Consultation.
- Mojtehedzadeh, Sara. 2016, Apr. 6. “Fair Appeals for Injured Workers Under Threat, Experts Warn” (Toronto Star)
- Bright Lights and Injured Workers Consultants. 2013, Feb. 26. Submission re Injured Worker Response to New Appeal Changes. Toronto: IWC.
- Newhouse, Gary. 2012, Sep. 25. Submission re Proposed Changes to the Appeals Program. Toronto
- Tamil Speaking Injured Workers Group. 2012, Sep. 5. Submissions to the WSIB & Minister of Labour on appeals changes Toronto: The Group