Decision Nº ReleasedDecisionsWithSummaryAdded from Workplace Safety and Insurance Appeals Tribunal of Ontario, 09-05-2018

• Judge: L. Gehrke: Vice-Chair
• Judgment Date: 09 May 2018
• Neutral Citation: 2018 ONWSIAT 1541 WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL Decision No. 1209/16ER BEFORE: L. Gehrke: Vice-Chair HEARING: April 5, 2018 at Toronto Written DATE OF DECISION: May 9, 2018 NEUTRAL CITATION: 2018 ONWSIAT 1541 DECISION(S) UNDER APPEAL: Worker request for reconsideration of Decision No. 1209/16E dated May 9, 2016 APPEARANCES: For the worker: H.A. Balmer, Paralegal For the employer: Not participating Interpreter: Not applicable REASONS (i) Introduction to the reconsideration proceedings The worker has requested a reconsideration of Decision No. 1209/16E, which denied a time extension under section 125(2) of the Workplace Safety and Insurance Act, 1997 (the WSIA) to appeal the decision of the Appeals Resolution Officer (the ARO decision) dated January 27, 2015. The ARO decision denied the worker entitlement for the low back resulting from a compensable injury on March 5, 1967. The worker appealed the ARO decision on October 5, 2017, two months and one week after the six-month statutory deadline under section 125 of the WSIA expired. (ii) The reconsideration test The WSIA and the Workers’ Compensation Act (the WCA) provide that the Appeals Tribunal’s decisions shall be final. However, section 129 of the WSIA and sections 70 and 92 of the WCA 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), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. As discussed in Decision No. 871/02R2, 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
• Judgement Number: ReleasedDecisionsWithSummaryAdded
• Hearing Date: 05 April 2018
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 1209/16ER 09-May-2018 L.Gehrke

• Reconsideration (consideration of evidence)
• Time limits (appeal) (diligence of applicant)

The worker applied for reconsideration of Decision No. 1209/16E, which denied the worker an extension of the time to appeal.

Decision No. 1209/16E appeared to have accepted the possibility that the worker did not receive the Board decision and was not aware of the deadline to appeal until June 2015 but found no reasonable explanation for the further delay in filing the appeal beyond June 2015.

The Vice-Chair found that Decision No. 1209/16E did not address available submissions that the worker's psychological condition and PTSD affected his ability to engage in the appeal process in a timely manner. The decision also did not address other significant submissions explaining the delay, including lack of representation at the relevant time. Further, the decision did not consider other factors generally considered in time extension applications, such as length delay, prejudice and staleness.

The application to reconsider was granted.

The Vice-Chair went on to consider the merits of the time extension application and concluded, based on consideration of the relevant factors, that the worker was entitled to the extension.

9 Pages

References:	Act Citation WSIA Other Case Reference [w2818s] CASES CONSIDERED: Clifford v. Ontario (Attorney General), 2009 ONCA 670 consd; Cunningham v. Hutchings, 2017 ONCA 938 consd; Laski v. Laski, 2016 ONCA 337 consd
Style of Cause:
Neutral Citation:	2018 ONWSIAT 1541

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 1209/16ER

BEFORE: L. Gehrke: Vice-Chair

HEARING: April 5, 2018 at Toronto

Written

DATE OF DECISION: May 9, 2018

NEUTRAL CITATION: 2018 ONWSIAT 1541

DECISION(S) UNDER APPEAL: Worker request for reconsideration of Decision No. 1209/16E dated May 9, 2016

APPEARANCES:

For the worker: H.A. Balmer, Paralegal

For the employer: Not participating

Interpreter: Not applicable

REASONS

(i) Introduction to the reconsideration proceedings

1. The worker has requested a reconsideration of Decision No. 1209/16E, which denied a time extension under section 125(2) of the Workplace Safety and Insurance Act, 1997 (the WSIA) to appeal the decision of the Appeals Resolution Officer (the ARO decision) dated January 27, 2015. The ARO decision denied the worker entitlement for the low back resulting from a compensable injury on March 5, 1967. The worker appealed the ARO decision on October 5, 2017, two months and one week after the six-month statutory deadline under section 125 of the WSIA expired.

(ii) The reconsideration test

2. The WSIA and the Workers’ Compensation Act (the WCA) provide that the Appeals Tribunal’s decisions shall be final. However, section 129 of the WSIA and sections 70 and 92 of the WCA 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.
3. 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), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1.
4. As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides the entire Tribunal...