Episode #32 Appeals process

Описание: Episode #32 – Richard, Paul, and Pamela, discuss the issue of appeals process at the WSIB and WSIAT.

For those appealing a decision at the WSIB Appeals Services Division there is the WSIB procedures which can be referenced here:
https://www.wsib.ca/en/appeals-practi...

WSIB APPEAL TIME LIMITS:
You must appeal a decision to the WSIB Appeals Services Division within 30 days for a return to work issue and within six months for all other issues.

The law that requires a worker to appeal a decision within 30days of a return to work decision or six months after all other decision is section 120 of the Workplace Safety and Insurance Act, and can be found at the following link:
https://canlii.ca/t/2wt#sec120

NOTE: That the law allows the Board to waive the time limit.

Also, after receiving the WSIB ARO decision the law allows the WSIB to reconsider the decision at any time as per section 121 of the Workplace Safety and Insurance Act, which can be found here:
https://canlii.ca/t/2wt#sec121

WSIAT APPEAL TIME LIMITS:
The law that provides an appeal must be made to the Workplace Safety and Insurance Appeals Tribunal within six months is section 125 of the Workplace Safety and Insurance Act and can be found at the following link:
https://canlii.ca/t/2wt#sec125

COURT ORDERING COMPLIANCE TO AN APPEAL DEICION:
I discuss the Alberta case of Lee v. Alberta (Workers’ Compensation Board), where the injured worker had appealed a denial of entitlement by the Alberta WCB to the Appeals Commission. However, the WCB refused to carry out the appeals decision order. The injured worker then brought an application to the court for a Writ of Mandamus to request the court compel the WCB comply with the appeal decision.

The judge at paragraph 19 stated the following:

“This Court has jurisdiction through the prerogative remedy of mandamus to ensure that statutory bodies carry out their statutory duties. The Court may order a statutory body to do a thing that it is obligated to do, and if a statutory body does not comply with the Court’s order it is in contempt of court.”

This meant if the WCB continued to refuse to comply with the court’s order then the WCB would be held in contempt of court and someone would go to jail! It should never require someone going to court, but often times you have a body of management so fixated on the facts they THINK the worker is faking they will go so far as to defy an appeal decision and maybe even defy a court order.

The case can be found at the following link:
https://canlii.ca/t/5pcc#par19

TIME LIMITS AT THE WSIAT:
The appeal I won was with a delay in thecase was almost ten years and not seven years as I stated in the episode.

Decision No. 308/24, 2024 ONWSIAT 1529 (CanLII).
The decision can be found at the following link:
https://canlii.ca/t/k8bqv

Another decision on time limits is Decision No. 553/97R, 2014 ONWSIAT 1101 (CanLII), which allowed a reconsideration of a decision that was 15 years old.
The decision can be found here:
https://canlii.ca/t/g8880

Also Decision No. 553/97R2 the panel members found the worker was unemployable.

RECONSIDERAITONS AT THE WSIAT:
The WSIAT practice directive on reconsiderations can be found here:
https://www.wsiat.ca/en/practiceDirec...

The Supreme Court decision of Canada v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653 and can be found at the following link:
https://canlii.ca/t/j46kb

I discuss how the lower appellant court the Divisional Court had used the Vavilov standard of reasonableness to determine that the WSIAT panel had acted outside their jurisdictional authority when they ignored all the medical evidence and in its place put their own personal opinion that the worker was faking!

Ferreira v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 3437 (CanLII),

The decision can be found at the following link:
https://canlii.ca/t/j0v21


The section of law that makes clear the Office of the Worker Advisor is to represent injured workers is section 176 of the Workplace Safety and Insurance Act, which states:

“The Office of the Worker Adviser is continued. Its functions are to educate, advise and represent workers who are not members of a trade union and their survivors.”

Which can be found at the following link:
https://canlii.ca/t/2wt#sec176

I would add that in removing union members form being provided representation it is without question is a section 2, Charter of Rights and Freedoms infringement, which must be challenged, but has never been by unions.

Richard Fink is a lawyer who has been practicing in workers compensation law in Ontario for over 40 years. Paul Taylor is a paralegal who also practices in workers compensation law in Ontario among other areas of law and has a specialization in human rights law. For more information check our websites:
www.finklegal.com
www.paulsparalegal.ca