Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 11-12-2020

• Judge: D. Revington: Vice-Chair
• Judgment Date: 11 December 2020
• Neutral Citation: 2020 ONWSIAT 1994 DECISION(S) UNDER APPEAL: request for reconsideration of Decision No. 716/20 dated June 18, 2020 APPEARANCES: For the worker: F. Goncalves, For the employer: Not participating Interpreter: Not applicable REASONS (i) Introduction to the reconsideration proceedings A Vice-Chair of the Tribunal released Decision No. 716/20 on June 18, 2020. Decision No. 716/20 found the worker was not entitled to a supplement under section 147(4) of the pre-1989 Workers’ Compensation Act (the pre-1989 Act) as amended. The worker has requested a reconsideration of Decision No. 716/20. The Tribunal Chair has assigned this reconsideration request to me. (ii) The reconsideration test Decisions of the Tribunal are intended to be final (section 123(4) Workplace Safety and Insurance Act, 1997 (WSIA)). Nevertheless, section 129 of the WSIA allows the Tribunal to reconsider its own decisions. 129 The Appeals Tribunal may reconsider its decision and may confirm, amend or revoke it. The tribunal may do so at any time if it considers it advisable to do so. … The Tribunal has developed its own Practice Direction: Reconsiderations that describes the test and procedure for reconsiderations. It explains that a reconsideration is different from an appeal. A reconsideration requires two steps. The first step is the “threshold test.” Unlike an appeal of a decision of the Workplace Safety and Insurance Board (Board) to the Tribunal, a party seeking to reconsider a Tribunal decision must first provide a good reason why the Tribunal decision should be reconsidered. The Tribunal must agree that this threshold test for the reconsideration has been met, or it will not go to the second step. The second step, called “the decision on its merits,” considers whether the original decision should be changed. To meet the threshold test, the Tribunal must find that there was a significant error in the hearing procedure or in the content of the decision which, if corrected, would probably change the result of the original decision. This is a high test. The error and its effects must be so significant that they outweigh the general importance of the finality of a decision and the prejudice to any party of a decision being reopened. The threshold test has been explained and followed in many Tribunal decisions (see, for example, Decision Nos. 871/02R2, and 2003/15R). As the Divisional Court has stated “because a reconsideration is distinct from an appeal, a high threshold test is required to balance the interests of the Tribunal and other parties…:” Gowling v. Ontario
• Judgement Number: Released_Decisions
• Hearing Date: 10 November 2020
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 716/20R

BEFORE: D. Revington: Vice-Chair

HEARING: November 10, 2020 at

DATE OF DECISION: December 11, 2020

NEUTRAL CITATION: 2020 ONWSIAT 1994

DECISION(S) UNDER APPEAL: request for reconsideration of Decision No. 716/20 dated June 18, 2020

APPEARANCES:

For the worker: F. Goncalves,

For the employer: Not participating

Interpreter: Not applicable

REASONS

(i) Introduction to the reconsideration proceedings

1. A Vice-Chair of the Tribunal released Decision No. 716/20 on June 18, 2020. Decision No. 716/20 found the worker was not entitled to a supplement under section 147(4) of the pre-1989 Workers’ Compensation Act (the pre-1989 Act) as amended. The worker has requested a reconsideration of Decision No. 716/20. The Tribunal Chair has assigned this reconsideration request to me.

(ii) The reconsideration test

2. Decisions of the Tribunal are intended to be final (section 123(4) Workplace Safety and Insurance Act, 1997 (WSIA)). Nevertheless, section 129 of the WSIA allows the Tribunal to reconsider its own decisions.

129 The Appeals Tribunal may reconsider its decision and may confirm, amend or revoke it. The tribunal may do so at any time if it considers it advisable to do so.

…

3. The Tribunal has developed its own Practice Direction: Reconsiderations that describes the test and procedure for reconsiderations. It explains that a reconsideration is different from an appeal. A reconsideration requires two steps. The first step is the “threshold test.” Unlike an appeal of a decision of the Workplace Safety and Insurance Board (Board) to the Tribunal, a party seeking to reconsider a Tribunal decision must first provide a good reason why the Tribunal decision should be reconsidered. The Tribunal must agree that this threshold test for the reconsideration has been met, or it will not go to the second step. The second step, called “the decision on its merits,” considers whether the original decision should be changed.
4. To meet the threshold test, the Tribunal must find that there was a significant error in the hearing procedure or in the content of the decision which, if corrected, would probably change the result of the original decision. This is a high test. The error and its effects must be so significant that they outweigh the general importance of the finality of a decision and the prejudice to any party of a decision being reopened. The threshold test has been explained and followed in many Tribunal decisions (see, for example, Decision Nos. 871/02R2, and 2003/15R). As the Divisional Court has stated “because a reconsideration is distinct from an appeal, a high threshold test is required to balance the interests of the Tribunal and other parties…:” Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919 (Div. Ct).
5. This means the Tribunal will not grant a reconsideration just because a party disagrees with the decision. “A reconsideration hearing is not an opportunity to reargue the case” Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., [2014], ONSC 7289, (Div. Ct.), at paragraph 47; leave to appeal dismissed by the Ontario Court of Appeal, April 10, 2015.
6. The Tribunal’s Practice Direction: Reconsiderations provides the following examples of when the Tribunal may decide there is a good reason to reconsider a decision:

• significant new evidence is discovered which was not available at the original hearing and which would likely have changed the outcome
• the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it)
• the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the WSIA)
• the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide)

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