Document name

Appeals – Board Appeal Tribunal

Document number

POL 13/2024

Board Appeal Tribunal (Tribunal) consists of the full-time members who are responsible for hearing and deciding appeals (Section 9(5)). The Tribunal acts as the final level of appeal for injury claim and employer account decisions of the Workers’ Compensation Board (WCB). This role of the Board Members as an appellant body is separate from its governance role.

Quorum, for the purpose of Tribunal appeals, means the minimum number of Tribunal members required to make a decision.

1. To ensure fair treatment to workers, dependants, and employers, the WCB has established an appeal process. An appeal to the Tribunal is the final step in the appeals process.
   1. If, however, a worker or worker’s dependant has had a decision from the Tribunal and there is a medical question in relation to the Tribunal’s decision, a Medical Review Panel may be warranted; see POL 02/2023 – Medical Review Panels.
2. Several sections in The Workers’ Compensation Act, 2013 (the “Act”) deal with the right to appeal a decision:
   1. The Board Members can delegate any of their powers or functions to WCB employees. Persons affected by delegate decisions can make appeals. The Act also directs that the WCB must create policy to guide the appeals process (Section 18).
   2. The board may:
      1. Reconsider any matter that it has dealt with; 
      2. Rescind, alter, or amend any decision or order it has made (Section 20(3)(4)(5).
   3. “Any weekly or other periodical payment to a worker or a worker’s dependent spouse payable out of the fund may be reviewed:
      1. on the motion of the board; or
      2. at the request of the worker, the worker’s dependent spouse or the worker’s employer (Section 100(1).”
3. While not specific to appeals, there are certain sections of the Act that are particularly relevant when the Board Appeal Tribunal is reviewing an appeal. They are:
   1. A “majority of the members constitutes a quorum of the board.” (Section 14).
   2. The Board can sit at any tie and can conduct its proceedings in any manner that it considers suitable (Section 15(3)).
   3. The Board has the same powers that the Court of King's Bench has for the trial of civil actions:
      1. "To summon and enforce the attendance of witnesses,
      2. To compel witnesses to give evidence, and
      3. To compel witnesses to produce records or property.” (Section 21(2)).
   4. The Board is authorized to request depositions of witnesses “to be taken before any person appointed by the board (Section 22).”
   5. "A decision of the board must be based on the merits and justice of each case and is not bound by legal precedent. The benefit of doubt will be given to the worker when the evidence in support of opposite sides of an issue is approximately equal" (Section 23).
4. The Board is not required to hold oral hearings for any matters decided under the Act (Section 171).
5. The WCB will publish appeal decisions of members of the Tribunal along with the reasons for the decision for appeal requests submitted to the Tribunal on or after October 1, 2024 (Section 23.1).

1. The WCB has established that only the Tribunal will have the exclusive jurisdiction to reach a decision in the first instance, or to review an appeal, which includes the following issues:
   1. Presumption claims filed prior to January 1, 2003 (Section 29 and POL 04/2014),
   2. Requests for alternate forms of annuities (Section 73 and POL 01/2024),
   3. Requests for a supplement to an annuity (Section 74 and POL 01/2024),
   4. Requests for a Medical Review Panel (Sections 59 to 65),
   5. Orders of the Board (Section 170),
   6. Applications as to whether a court action (or grievance) is barred under the Act (Section 169 and POL 01/2013), and
   7. Matters relating to the Canadian Charter of Rights and Freedoms (POL 05/2005).
2. The Tribunal also has the jurisdiction to make decisions following a decision of:
   1. The Appeals Department,
   2. The Assessment Committee,
   3. The Disaster Reserve Review Committee, and
   4. The Privacy Officer.
3. Receipt of an appeal will be acknowledged. For injury claim appeals, both the worker and employer are advised of the appeal and provided an opportunity to submit evidence in support of their position.
4. Access to a worker’s claim file can be provided in accordance with the provisions of Sections 173 and 174 respectively (PRO 06/2017, Authority for Disclosure will apply).
5. The worker, dependant or employer may request an oral hearing with the Tribunal.
   1. The Tribunal has the discretion to decide whether a hearing will be granted.
   2. If a hearing has been granted and the worker or dependant must travel to attend the hearing, travel expenses will be provided in accordance with the current Travel Expense Rates procedure.
6. An employer may ask to attend a worker’s appeal hearing or a worker may ask to attend an employer’s appeal hearing. The Tribunal will consider such requests on a case-by-case basis and, where granted, will advise the parties of the process to be followed. The process is subject to modification to ensure fair and reasonable treatment of both workers and employers.
7. The WCB has established policies and procedures that provide guidelines for decision making. The Tribunal is not bound by those policies and procedures, and they are also not bound by precedent. They will consider any appeal on its true merits and justice in accordance with the provisions of the Act, policies, and the rules of natural justice, which require the decision maker to:
   1. Act properly, fairly and without bias,
   2. Provide an opportunity for each party to state their case,
   3. Inform each party of the case that they must respond to,
   4. Consider all the evidence,
   5. Ensure that the decision is made by those who have considered the evidence, and
   6. Provide the parties with meaningful and timely reasons.
8. Board Services’ staff may collect additional evidence at any time during the appeal process to ensure the Tribunal has all relevant evidence.
9. Following their review, the Tribunal will serve written notice of its decision along with the rationale for the decision to the party that submitted the appeal.
   1. For an appeal submitted by a worker or dependant, the employer will be notified as to whether the appeal was accepted or denied.
   2. For an appeal submitted by an employer, the worker or dependant will be notified of the decision if the decision will have an impact on their claim.
10. In accordance with the privacy provisions under The Freedom of Information and Protection of Privacy Act (FOIPP), a redacted version of the Tribunal’s decision will be published online at Canadian Legal Information Institute | CanLII.
11. Any decision or direction by the Tribunal will be given priority by the appropriate WCB staff.

Standard of proof

12. All evidence relevant to the issue(s) under dispute is considered and weighed by the Tribunal. Decisions are made considering the merits and justice of the appeal and the conclusion that is more likely than not. Where the evidence on opposite sides of a claim issue is approximately equal, the issue is settled in favour of the worker. For appeal issues exclusive to an employer’s account (i.e., has no impact on a worker’s or dependant’s entitlement), benefit of doubt will also be extended to the employer. Policy POL 02/2019, Decision Making, will apply.

Burden of proof

13. There is no burden of proof on the worker or employer submitting an appeal. However, the worker or employer is expected to provide the reasons they disagree with the last decision, and to cooperate in providing any evidence required by the Tribunal. The onus is on the Tribunal to ensure that there is sufficient evidence to make a decision regarding the matter under appeal.