| Neutral Citation | 2023 ONWSIAT 1932 DECISION(S) UNDER APPEAL: Worker request for reconsideration of Decision No. 1868/21, dated March 23, 2022 APPEARANCES: For the worker: Self-represented For the employer: Did not participate Interpreter: N/A REASONS Introduction to the reconsideration proceedings The worker’s request for reconsideration was considered as a written case in Toronto on August 30, 2023. The worker has requested that the Tribunal reconsider Decision No. 1868/21, 2022 ONWSIAT 480 dated March 23, 2022. Decision No. 1868/21 determined that the worker is not entitled to benefits for blood clots as a secondary condition as causally related to the compensable workplace accident of November 4, 1983, or in the alternative, as a result of physiotherapy treatment in May 1989. I had before me the original case materials that were before the hearing Panel, as well as the Reconsideration Record, dated August 2, 2023. The Reconsideration Record included Decision No. 1868/21; written submissions prepared by the worker; the original case materials including medical reports, which were before the Panel; correspondence from the worker and from the Tribunal related to the processing of the worker’s request for reconsideration; and other related materials. (ii) The reconsideration test The Workplace Safety and Insurance Act and the Workers’ Compensation Act provide that the Appeals Tribunal’s decisions shall be final. However, section 129 of the Workplace Safety and Insurance Act and sections 70 and 92 of the Workers’ Compensation Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so". Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision. Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened. The threshold test has been discussed in some detail in Decision Nos. 72R (1986), 1986 CANLII 623 (ON WSIAT), 18 W.C.A.T.R. 1; 72R2 (1986), 1986 CANLII 226 (ON WSIAT), 18 W.C.A.T.R. 26; 95R (1989), 1989 CANLII 1835 (ONWSIAT), 11 W.C.A.T.R. 1; and 850/87R (1990), 1990 CanLII 5009 (ON WSIAT), 14 W.C.A.T.R. 1. As discussed in Decision No. 871/02R2, 2006 ONWSIAT 3023 one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths, in spite of limited resources, to promote a fair process. The threshold test and the role of the reconsideration process must be understood in the context of the Tribunal’s processes generally. Most parties have the option of an oral hearing, which is a hearing “de novo” at the Tribunal. This is very unusual at the final level of appeal within any adjudicative system. The Tribunal invests considerable resources in preparing cases for hearing and assisting parties to identify the issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions which are reached after a fair hearing process. Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests. It is instructive to refer to Decision No. 871/02R2’s analysis of the threshold test that a reconsideration request must meet and the reasons for this: Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal’s power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must: (a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or (b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing. Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened. [emphasis in original] The Divisional Court has reviewed and upheld the Tribunal’s reconsideration process in Gowling v. Ontario |
