APPEAL TRIBUNAL
RULES OF PRACTICE AND PROCEDURE
INTRODUCTION
The Workers’ Safety and Compensation Act, SY 2021, c 11 (the “Act”) continues the appeal tribunal as an external body, independent of the Workers’ Safety and Compensation Board (the “Board”). While independent, the appeal tribunal is part of the safety and compensation system and must apply the Act, regulations made under the Act and the policies and codes of practice of the Board.
These rules are made pursuant to sections 158(1), 160(2) and 5 of the Act, which provide the appeal tribunal with the power to control its own processes, to make guidelines respecting the conduct of its business and proceedings that are consistent with the Act, regulations made under the Act and the policies and codes of practice of the Board and to establish practices and procedures for carrying out its responsibilities under the Act.
These rules apply to appeals that are subject to the Act, which came into force on July 1, 2022.
The appeal tribunal may make practice directions to assist in the interpretation of these rules and to provide directions which will have the same force as these rules.
The appendices to these rules provide important information regarding the nature, jurisdiction and practices of the appeal tribunal. See:
Appendix A for the issues that can be appealed and required timelines
Appendix B for information on the nature of appeal proceedings
Appendix C for information on procedural fairness
Appendix D for information on evidentiary matters
Michael Riseborough
Chair, Appeal Tribunal
September 31, 2022
Quick Access
Appendix
Rules of Practice and Procedure
1. Definitions
1.1 “Act” means the Workers’ Safety and Compensation Act, SY 2021, c. 11, as amended from time to time.
1.2 “appeal tribunal” means the appeal tribunal continued under Part 5 of the Act.
1.3 “appellant” means a person who delivers a Notice of Appeal to the appeal tribunal.
1.4 “board” means the Workers’ Safety and Compensation Board continued under Part 2 of the Act.
1.5 “Chair” means the Chair of the Appeal Tribunal appointed pursuant to section 157 of the Act.
1.6 “panel” means the three members of the appeal tribunal appointed by the Chair to hear an appeal.
1.7 “party” means a person who is an appellant or respondent.
1.8 “respondent” means the board, a person who delivers a Notice of Intent to Participate to the appeal tribunal, or a person who otherwise obtains standing to respond to an appeal.
2. Application
2.1 These rules govern every proceeding before the appeal tribunal except where the Act, regulations made under the Act, or other statute or regulation otherwise provides.
2.2 The object of these rules is to establish a process for appeals that is simple, fair and accessible, with minimal delays, and accords with the rules of natural justice.
2.3 If any of these rules conflict with or are inconsistent with the Act, regulations made under the Act or policy or code of practice of the board, then the Act, regulation, policy or code of practice, as the case may be, prevails to the extent of the conflict or inconsistency.
2.4 The appeal tribunal may, on application of a party or its own initiative, waive or vary a rule, including a time period specified in these rules, whether or not the time has passed or expired. Any waiver or variance may be made or given subject to terms and conditions. This rule applies despite any other rule but does not apply to the Act or regulations under the Act.
3. Effect of Non-Compliance
3.1 Unless the appeal tribunal otherwise orders, a failure to comply with these rules will be considered an irregularity and does not nullify an appeal, a step taken or any document or order made in an appeal.
4. Computation of Time
4.1 Unless a contrary intention otherwise appears, when the time limited for the doing of anything expires or falls on a Saturday or Sunday, or a holiday, the time so limited extends to and the thing may be done on the first following day that is not a Saturday, Sunday or a holiday.
GENERAL
5. Documents
5.1 Unless the nature of the document renders it impracticable, every document prepared for use in an appeal must be in English or French, legibly printed, typewritten, written or reproduced on 8 1/2 inch x 11 inch durable white paper or durable off-white recycled paper.
6. Address for Delivery
6.1 A party’s address for delivery must include:
6.1.1 a physical residential or business address, and
6.1.2 a postal address, if different from the physical residential or business address.
6.2 A party’s address for delivery may include:
6.2.1 an email address, and
6.2.2 a fax number.
6.3 The following documents must contain the address for delivery of the party by whom or on whose behalf the document is delivered:
6.3.1 a Notice of Appeal, delivered by an appellant,
6.3.2 a Notice of Intent to Participate, delivered by a respondent, and
6.3.3 an Authorization of Representation Form, delivered by a representative of an appellant or respondent.
6.4 A party must promptly notify the appeal tribunal of any change to their address for delivery.
7. Delivery of Documents
7.1 A document is delivered to the appeal tribunal on the date that it is received by the appeal tribunal. A document may be received by the appeal tribunal through:
7.1.1 personal delivery, by leaving a copy with the representative of the appeal tribunal at 61b Wasson Place, Whitehorse, Yukon,
7.1.2 regular or registered pre-paid mail to 61b Wasson Place, Whitehorse, Yukon,
7.1.3 email to tribunal@yukonwcat.ca, or
7.1.4 fax to 867-393-7030, but only if the document is 20 pages or less.
7.2 A document is received by the appeal tribunal:
7.2.1 in the case of personal delivery, on the date the representative of the appeal tribunal actually receives the document;
7.2.2 in the case of mail, on the date the appeal tribunal actually receives the mail;
7.2.3 in the case of fax, on the date recorded by the appeal tribunal’s fax machine; and
7.2.4 in the case of email, on the date recorded by the appeal tribunal’s email server.
7.3 The appeal tribunal will deliver documents to a party by way of delivery or transmission to one of that party’s addresses for delivery.
7.4 A document delivered to a party by the appeal tribunal will be deemed to be received as follows:
7.4.1 if the document is sent or given by email or fax, on the date the email or fax was sent by the appeal tribunal;
7.4.2 if the document was given personally, on the date it was personally delivered by the appeal tribunal.
7.4.3 if the document was sent by mail, seven days after the document was mailed by the appeal tribunal.
7.5 Even though the appeal tribunal delivers a document to a party in accordance with Rule 7, in a request to waive or vary a time limit provided for by these Rules a party may show that the document did not come to their attention, or came to their attention at a time later than when it was delivered.
DOCUMENTS AND DELIVERY OF DOCUMENTS
8. Representatives
8.1 It is not necessary for a party to have a representative; however, a person may appoint a representative, including a lawyer or the Workers’ Advocate, to act on their behalf.
8.2 If a party wishes to appoint a representative to act on their behalf, they must deliver an Authorization of Representation Form to the appeal tribunal.
8.3 If a representative stops acting for a party, the party or the representative must promptly deliver a written notice to the appeal tribunal and send a copy of the notice to every other party.
REPRESENTATIVES
9. Starting an Appeal
9.1 To start an appeal, a person who has a right to appeal must deliver a Notice of Appeal to the appeal tribunal in the prescribed form within the time required by the Act.
9.2 A Notice of Appeal must:
9.2.1 be in writing,
9.2.2 identify the decision or order that is being appealed,
9.2.3 state why the decision or order should be varied or reversed,
9.2.4 state the outcome requested,
9.2.5 contain the appellant’s name and address for delivery,
9.2.6 state the type of hearing requested, and
9.2.7 be signed by the appellant or the appellant’s representative.
9.3 If an appellant has a representative, the Notice of Appeal must also:
9.3.1 contain the name of the appellant’s representative, and
9.3.2 attach a completed Authorization of Representation Form.
9.4 If the Workers’ Advocate represents an appellant, it must deliver a completed Authorization of Representation Form unless such authorization has already been provided and is part of the appellant’s claim file.
10. Registering Notice of Appeal
10.1 If a Notice of Appeal satisfies the requirements of Rule 9.2 and 9.3, the appeal tribunal will register the appeal.
10.2 If a Notice of Appeal does not satisfy requirements of Rule 9.2 and 9.3, the appeal tribunal will acknowledge receipt of the Notice of Appeal in writing, identify the deficiencies in the Notice of Appeal and advise the appellant that they must cure the deficiencies within the time stipulated by the appeal tribunal (normally 14 days), or the time limit to appeal, whichever is greater.
10.3 If the appellant does not cure the deficiencies within the time allowed, the appeal tribunal will not register the appeal, will close the file as incomplete and take no further action.
11. Notification of Appeal
11.1 Within 14 days of registering a Notice of Appeal, the appeal tribunal will deliver to the board and every other person the appeal tribunal determines may be directly affected by the appeal:
11.1.1 a copy of the Notice of Appeal, and
11.1.2 a blank Notice of Intent to Participate form.
11.2 Any person other than the board to whom the appeal tribunal delivers notice pursuant to Rule 11.1 must, if they wish to participate in the appeal, deliver a completed Notice of Intent to Participate Form to the appeal tribunal within 14 days of receipt of the notice.
11.3 If a respondent, other than the board, has a representative, the Notice of Intent to Participate form must also:
11.3.1 contain the name of the respondent’s representative, and
11.3.2 attach a completed Authorization of Representation Form.
11.4 If the Workers’ Advocate represents a respondent, it must deliver a completed Authorization of Representation Form unless such authorization has already been provided and is part of the appellant’s claim file.
11.5 Any person to whom the appeal tribunal delivers notice pursuant to Rule 11.1 who does not deliver a completed Notice of Intent to Participate Form to the appeal tribunal within the time prescribed, other than the board, will not be a party to the appeal and will not receive any further notice or information regarding the appeal, including notice of any hearing date, but will be notified if the appeal tribunal is subsequently directed by the board to rehear the appeal.
11.6 Any person who believes that they will be directly affected by the appeal, but does not receive notice of the appeal pursuant to Rule 11.1, may apply to the appeal tribunal for standing as a party to the appeal.
12. Withdrawing an Appeal
12.1 An appellant may withdraw an appeal by delivering written notice of withdrawal to the appeal tribunal at any time before a panel gives a decision.
HOW TO APPEAL
CONTROL OF PRACTICE AND PROCEDURE
13. Lack of Jurisdiction
13.1 A panel may dismiss an appeal without a hearing on its merits, on its own motion or on application by any party, after giving parties an opportunity to make submissions, on any of the following grounds:
13.1.1 the appeal is not within the appeal tribunal’s jurisdiction, or
13.1.2 the Notice of Appeal was not delivered within the time for making an appeal as required by the Act.
14. Control of Proceedings
14.1 The Chair and Panel may make any rulings necessary to control the proceedings and prevent abuse of process.
15. Adjournment
15.1 A panel may adjourn or postpone a hearing, on its on motion or on application by any party.
15.2 In determining whether or not to grant an adjournment or postponement, the panel will consider:
15.2.1 any prejudice to the appellant and to the respondents,
15.2.2 whether a prior postponement was granted,
15.2.3 whether the request is made far enough in advance so that the hearing can be rescheduled with a minimum of cost,
15.2.4 whether the hearing dates were scheduled in consultation with the parties,
15.2.5 whether other parties have consented to the request, and
15.2.6 any other relevant factor.
DISCLOSURE OF BOARD'S RECORDS
16. Board’s Records
16.1 When the appeal tribunal delivers notice of an appeal to the board pursuant to Rule 11.1, the appeal tribunal will request disclosure of the record of the board respecting the matter under appeal and the board will provide the disclosure to the appeal tribunal as soon as it has been prepared.
16.2 When the appeal tribunal delivers notice of an appeal to any other person pursuant to Rule 11.1, the appeal tribunal will notify the person of their right to request disclosure of the record of the board respecting the matter under appeal from the board.
16.3 The appeal tribunal will not schedule a hearing until the parties have had sufficient time to request disclosure of the record of the board respecting the matter under appeal.
HEARINGS - PRELIMINARY MATTERS
17. Appointment of Panel
17.1 The Chair will appoint a panel to hear the appeal in accordance with the Act.
18. Pre-hearing conference
18.1 A panel may require the parties to participate in a pre-hearing conference to address procedural and substantive issues relating to the conduct of an appeal.
18.2 Matters which may be addressed at a pre-hearing conference include, but are not limited to, the following:
18.2.1 identification of the issues or parties,
18.2.2 determination of new evidence or additional evidence, including whether any new medical or other expert evidence is required and the time frames for the production of that evidence,
18.2.3 procedural issues, including whether an oral hearing will be convened and, if so, when the hearing should be scheduled, and
18.2.4 the issue of a subpoenas to attend the hearing or to produce documents, or both.
19. Type of Hearing
19.1 The panel will determine whether the appeal will be heard in writing or orally, or partly in writing and partly oral, and may request submissions from the parties on the type of hearing to be provided.
19.2 In deciding whether an appeal will be heard in writing or orally, the panel will consider:
19.2.1 the appellant’s preference,
19.2.2 whether the appeal involves a significant issue of credibility that would require an oral hearing to resolve,
19.2.3 whether there are significant factual issues in dispute that would require an oral hearing to resolve,
19.2.4 whether the issues are largely based on medical, legal, or policy reviews that do not require an oral hearing to resolve, and
19.2.5 any other relevant factor.
19.3 Oral hearings may be conducted in person or through teleconference, videoconference, or any other electronic means.
19.4 A panel has discretion to change the appeal method. For instance, if an oral hearing has been scheduled, the panel may determine that an oral hearing is not necessary and instead proceed by way of a written hearing. Or, if the hearing has been scheduled to proceed in writing, the panel may decide to instead convene an oral hearing.
WRITTEN HEARINGS
20. Notification of written hearing
20.1 The appeal tribunal will deliver to each party notice that an appeal is to be heard in writing and of the dates for delivery of evidence and submissions.
21. Timeline for Delivery of Evidence and Submissions
21.1 Unless a panel determines that the nature of the appeal otherwise requires, the notice provided pursuant to Rule 20.1 will provide for the following timelines:
Appellant’s Evidence
21.1.1 the appellant will deliver to the appeal tribunal any evidence, including expert opinions, on which it intends to rely that has not already been disclosed within 14 days of receipt of the notice;
Respondent’s Evidence
21.1.2 upon delivery of the appellant’s evidence, the appeal tribunal will deliver copies of the appellant’s evidence to the respondents and the respondents will deliver to the appeal tribunal any evidence, including expert opinions, on which it intends to rely that has not already been disclosed within 14 days of receipt;
Appellant’s Reply Evidence and Submissions
21.1.3 upon delivery of the respondent’s evidence, the appeal tribunal will deliver copies of the respondent’s evidence to the appellant and the appellant will deliver to the appeal tribunal any reply evidence, including reply expert opinions, on which it intends to rely and that has not already been disclosed, and submissions within 14 days of receipt;
Respondents’ Response Submissions
21.1.4 upon delivery of the appellant’s reply evidence and submissions, the appeal tribunal will deliver copies of the reply evidence and submissions to the respondents and the respondents will deliver to the appeal tribunal any response submissions within 14 days of receipt; and
Appellant’s Reply Submissions
21.1.5 upon delivery of the respondent’s response submissions, the appeal tribunal will deliver a copy of the response submissions to the appellant and the appellant will deliver to the apply tribunal any reply submissions within 7 days of receipt.
ORAL HEARINGS
22. Notification of oral hearing
22.1 At least 45 days before an oral hearing, a panel will deliver to each party notice of the oral hearing date, place and time.
23. Disclosure prior to oral hearing
23.1 At least 28 days before an oral hearing, each party must deliver to the appeal tribunal:
23.1.1 Copies of any evidence, including expert opinions, on which it intends to rely or refer to at the hearing that has not already been disclosed through the record of the board or otherwise, and
23.1.2 A list of all witnesses it intends to call at the hearing.
23.2 At least 14 days before an oral hearing, the appeal tribunal will deliver the evidence and witness lists disclosed pursuant to Rule 23.1 to all other parties.
23.3 If a party wishes to provide written submissions in advance of the oral hearing, the party must deliver such submissions to the appeal tribunal at least 21 days before the hearing. If any such submissions are delivered, the Appeal Tribunal will deliver copies to all other parties, who may file reply submissions at least 7 days before the hearing.
23.4 A panel may prohibit a party from relying on or referring to any evidence, expert opinions or other materials, or from calling any witness, not disclosed in accordance with Rule 23.1, but in deciding to do so a panel must consider whether admitting the undisclosed material or witness is necessary to determine the appeal based on the merits and justice of the case.
23.5 If a party or witness requires an interpreter at an oral hearing, they must notify the appeal tribunal at least 14 days before an oral hearing.
23.6 If the board intends to attend and participate in an oral hearing, but does not disclose any evidence or a list of witnesses as provided for in Rule 23.1, the board must deliver a completed Notice of Intent to Participate to the appeal tribunal at least 21 days before the oral hearing.
24. Attendance at oral hearing
24.1 A panel may permit a party or parties, their representatives, or witnesses to attend an oral hearing by telephone, videoconference, or other electronic means.
24.2 Oral hearings are not open to the public, unless a panel otherwise orders.
24.3 A panel has the discretion to permit members of the public, including the media, to attend an oral hearing with the consent of all parties.
24.4 A panel will generally allow family members, friends or other support person to attend a hearing to support a party, but will consider submissions from the parties in that regard if any party objects to such attendance.
25. Witnesses
25.1 A party may apply to the panel, a minimum of 21 days before the oral hearing, for a subpoena to compel a witness to attend the hearing and produce all relevant records, things or other material in their possession.
25.2 An application for a subpoena to attend or to produce must:
25.2.1 state the reasons why the subpoena is required, including an explanation of why a witness or a document, thing or other material is relevant to the appeal; and
25.2.2 in the case of a subpoena to produce documents, things or other material, provide sufficient detail so that the person to whom the subpoena is directed is able to identify the requested material.
25.3 Other than parties who are or may be witnesses, a panel may exclude witnesses from the hearing except when they give their evidence.
25.4 Witnesses, including the parties, will usually be required to give evidence under affirmation or oath. This involves a solemn promise to tell the truth, in a form binding on the conscience of the witness.
25.5 A party may call and examine witnesses, cross-examine witnesses and present evidence and argument. A panel may reasonably limit examination or cross-examination of a witness if it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the appeal.
25.6 A panel may question any party or witness.
26. Procedure at oral hearing
26.1 Unless a panel otherwise orders, an oral hearing will proceed in the following manner:
26.1.1 the panel will introduce themselves, explain the role of the appeal tribunal, and ask other persons in attendance to introduce themselves and explain their role in the hearing,
26.1.2 the panel will exclude witnesses, where appropriate, until they are called upon to give evidence,
26.1.3 the appellant will present their case, including a brief statement of the remedy sought and grounds for the appeal, followed by their evidence,
26.1.4 the respondent may question the appellant’s witnesses on any relevant matter,
26.1.5 the panel may question the appellant’s witnesses on any relevant matter,
26.1.6 the respondent may present their case, including a brief statement of the remedy sought, followed by their evidence,
26.1.7 the appellant may question the respondent’s witnesses on any relevant matter,
26.1.8 the panel may question the respondent’s witnesses on any relevant matter,
26.1.9 the panel may give the appellant the opportunity to present additional evidence to respond to evidence the respondent introduced,
26.1.10 the appellant will make submissions based on the evidence before the panel,
26.1.11 the respondent will make submissions based on the evidence before the panel,
26.1.12 the appellant may respond to the respondent’s submissions; and
26.1.13 the panel will close the hearing and state that a written decision will be sent to the parties.
27. Recordings of Oral Hearings
27.1 The panel will record the oral hearing.
27.2 The parties may not record the hearing.
27.3 A party may apply to the appeal tribunal for a transcription of the recording, at their own cost, in accordance with the appeal tribunal’s policies.
EVIDENCE
28. Admission of Evidence
28.1 A panel is not bound by the strict rules of evidence applicable to courts of civil or criminal jurisdiction.
28.2 A panel may receive evidence that it considers relevant in any one or more of the following forms:
28.2.1 in writing,
28.2.2 by affidavit or affirmation,
28.2.3 orally, in person or by telephone conference, video conference or any other electronic means, or
28.2.4 any other manner it considers appropriate.
29. Panel Inquiries
29.1 At any time, a panel may request additional information or require a worker to submit to an independent medical examination or other evaluation or refer a matter to the board for further investigation.
29.2 If a panel requests additional information from any party, it will do so in writing and provide a copy of the request to all other parties.
29.3 A panel will provide any evidence obtained through its inquiries to the parties and give them an opportunity to make submissions on the evidence.
DECISIONS
30. Reasons for Decision
30.1 A panel will issue a decision on the appeal as soon as practicable, but in any case within 45 business days after the date the appeal is heard.
30.2 A panel’s decision will be in writing with clear and understandable reasons that:
30.2.1 identify the issues,
30.2.2 make findings of fact based on the evidence,
30.2.3 apply the relevant law and policy to the facts, and
30.2.4 are written without identifiers to maintain confidentiality.
30.3 A panel’s decision will be delivered to the board, the parties and all persons who were provided with the Notice of Appeal under Rule 11.1.
30.4 A panel’s decision will be published on the appeal tribunal’s website, or otherwise be made available to the public.
RECONSIDERATION
31. New evidence respecting appeals of decisions made under Part 4 of the Act
31.1 On application by the board or any other party, the Chair may direct the reconsideration of an appeal tribunal decision respecting decisions of the Board made under Part 4 of the Act on the grounds that new evidence has arisen or has been discovered since the hearing if the Chair determines that:
31.1.1 the new evidence is substantial and material to the decision, and
31.1.2 the new evidence did not exist at the time of the previous hearing or was not known to the applicant at the time of the previous hearing and could not have been discovered through the exercise of due diligence.
31.2 The Chair will request submissions from the parties on whether the requirements in in Rule 31.1 have been met before making a decision.
31.3 An application for reconsideration must be made to the Chair within 30 days of the date the new evidence was discovered by the applicant.31.4 The appeal tribunal cannot extend the time limit for applying for reconsideration.
FFES AND EXPENSES
32. Fees and Expenses
32.1 Parties are responsible for paying the fees and expenses of their representatives, if any.
32.2 If a party calls a witness to give evidence at a hearing, including any witness who attends as a result of a panel issuing a subpoena at the request of any party, that party is responsible for paying any attendance, professional, travel, or other fees payable to that witness.
32.3 If a party or a witness requires an interpreter, the appeal tribunal will select a qualified interpreter and is responsible for the cost of the interpretation services.
32.4 If a panel calls a witness for an in-person attendance at a hearing and that witness must travel to the hearing, the appeal tribunal may pay travel expenses (meals and incidental, transportation, and accommodation expenses) in accordance with the board or appeal tribunal’s policies.
32.5 If the panel requires a party to attend a medical appointment, the individual may be eligible for reimbursement of transportation costs, hotel costs and a per diem for meals and incidentals, in accordance with the appeal tribunal or board policies.
APPENDIX A
Jurisdiction of Appeal Tribunal
The appeal tribunal has jurisdiction to hear appeals from the decisions or orders specified in the Act, but only if the appeal is made by specific persons and within the time specified by the Act. The appeal tribunal does not have jurisdiction to waive or extend the time periods set by the Act.
The types of permitted appeals are identified below, along with the people who may appeal and the required timelines.
(a) Workplace health and safety decision or orders (section 75)
· An appeal of a reconsideration of a board decision or order made under Part 3 of the Act (Workplace Health and Safety), including a work refusal.
· Can be appealed by any person who is directly affected by the reconsideration decision.
· A reconsideration decision regarding a work refusal must be appealed within 7 days of the date of the reconsideration decision.
· All other reconsideration decisions under Part 3 of the Act must be appealed within 21 days of the date of the reconsideration decision.
(b) Cause of action determination (section 128)
· An appeal of a board decision respecting whether a cause of action is removed by the Act under Part 4 of the Act.
· Can be appealed by any party to the action that is the subject of the board’s decision.
· Must be appealed within 14 days of the date of the board decision (see s. 155(6) of the Act).
(c) Claim for compensation (section 155)
· An appeal of a reconsideration of a board decision respecting a claim for compensation under Part 4 of the Act.
· Can be appealed by a worker, a dependant of a deceased worker, or an employer.
· Must be appealed within one year of the date of the reconsideration decision.
(d) Assessment matters (section 155)
· An appeal of a reconsideration of a board decision respecting an assessment matter under Part 4 of the Act.
· Can be appealed by a person who appeals as an employer.
· Must be appealed within 90 days of the date of the reconsideration decision.
(e) Access information respecting a claim for compensation (section 156)
· An appeal of a board decision respecting access to information relating to a claim for compensation under Part 4 of the Act.
· Can be appealed by a worker, a dependant of a deceased worker, or an employer.
· Must be appealed within 14 days of the date of the board decision (see s. 155(5) of the Act).
(f) Administrative penalty (section 176)
· An appeal of a reconsideration of the imposition of an administrative penalty under Part 6 of the Act.
· Can be appealed by the person on whom the administrative penalty was imposed.
· Must be appealed within 21 days of the reconsideration decision.
There are several decisions that cannot be appealed to the appeal tribunal which include, but are not limited to:
(a) decisions of the board or an arbitrator appointed by the board made under section 54 of the Act relating to reprisal complaints (see s. 74 of the Act);
(b) decisions of the board made under section 71 of the Act relating to applications for variances from a regulation (see s. 74 of the Act);
(c) decisions of the board that are of a legislative or policy nature;
(d) decisions of the board that are administrative or incidental in nature;
(e) preliminary or procedural decisions by a board decision-maker; and
(f) constitutional matters (see s. 162 of the Act).
APPENDIX B
Nature of Appeal Tribunal Proceedings
The appeal tribunal must determine all appeals based on the merits and justice of the case (section 163 of the Act). The following features of proceedings before the appeal tribunal assist it in fulfilling that mandate.
First, proceedings before the appeal tribunal are conducted as re-hearings. This means that they are not completely new hearings, nor are they simply reviews of the record of the decision being appealed. Rather, the appeal tribunal has exclusive jurisdiction to examine, inquire into, hear, and determine all matters arising in respect of an appeal (section 160 of the Act), and it may confirm, vary or reverse the appealed decision or order (section 166 of the Act). This gives the appeal tribunal full substitutional authority. A panel can therefore reweigh the evidence and substitute its own decision for the decision below. There is no standard of review or search for error as part of the appeal tribunal’s mandate. The appeal tribunal need not explain or identify any error in the underlying decisions to justify reaching a different outcome. A panel may simply have a different view of the meaning of the evidence and will give effect to that view to ensure the appeal is decided on the merits and justice of the case.
Second, a panel may address any issue determined in the proceedings below, subject to the statutory limits on its jurisdiction. While a panel will typically not address issues unless they are expressly raised by the parties, it has the discretion to do so to ensure the appeal is determined on the merits and justice of the case. The panel will give notice to the parties of the panel’s intention to address any issue that was not raised in the notice of appeal or in the parties’ submissions.
Third, proceedings before the appeal tribunal are partly adversarial and partly inquisitorial. They are partly adversarial because a panel hearing an appeal relies, in part, on evidence and arguments provided by the parties to the appeal. They are partly inquisitorial because the appeal tribunal has jurisdiction to inquire into any matter before it, including by questioning parties and their witnesses, requesting additional information or referring a matter to the board for further investigation (section 166 of the Act). How much of each feature (inquiry and adversarial) influences a particular rehearing depends on the circumstances of each appeal and may vary from appeal to appeal. The appeal tribunal’s inquiry powers means that it is not limited by the evidence in the Board’s file and the evidence provided by the parties. If the appeal tribunal is not satisfied with the sufficiency and/or reliability of the evidence presented, it has the authority to inquire into the matter under appeal and consider all information obtained. However, the appeal tribunal has discretion as to how and when to exercise its inquisitorial powers. The question as to whether the evidence is sufficiently complete and reliable to decide the appeal based on the merits and justice of the case rests with the panel. It is not the appeal tribunal’s responsibility to evaluate the appeal and then notify parties of the weaknesses in the case for the purpose of obtaining further evidence. Parties should not assume that a panel will carry out any further investigations.
Finally, the panel is not bound by prior decisions made on similar issues on other appeals (section 163(2) of the Act). The panel is bound by previous final decisions made on the specific file or matter that is the subject of the appeal. Further, if a court in another case determined the correct interpretation of an Act or policy provision, the panel may be bound to apply the court’s interpretation.
APPENDIX C
Procedural Fairness
The appeal tribunal must conduct their hearings in accordance with the duty of procedural fairness (sometimes referred to as the rules of natural justice), which applies to every administrative body making decisions affecting the rights, privileges or interests of an individual or other body.
The content of the duty to act fairly depends on the circumstances of the case and may vary depending on the nature of the decision in question. The more important the decision is to those affected and the greater the impact on that person or persons, the more stringent the procedural protections that will be required. Also, administrative bodies which adjudicate formal appeals, like the appeal tribunal, are generally required to adhere to a particularly high standard of procedural fairness.
The duty to act fairly consists of four basic elements, which can be expressed as rights of the person whose interests are affected by a decision. These four rights are:
(a) the right to be heard,
(b) the right to a decision from an unbiased decision maker,
(c) the right to a decision from the person who hears the case, and
(d) the right to reasons for the decision.
The right to be heard
The right to be heard means that a person who may be directly affected by a decision has the right to receive notice that a decision may be made, the right to know what matters will be decided, and the right to be given a fair opportunity to state their case and to correct or contradict relevant statements or evidence with which they disagree. This right will usually require:
(a) disclosure to a party of all documents that were before the decision maker at the board level and at the appeal tribunal level, whenever received by the decision maker, including any written submissions from other parties and evidence obtained by any party or the appeal tribunal;
(b) an opportunity to provide submissions in relation to all disclosed material and to respond to the written submissions of other parties;
(c) the right to a reasonable amount of time to prepare for a hearing or provide written submissions;
(d) the right to present evidence;
(e) the right to cross examine adverse evidence;
(f) an oral hearing if the circumstances require one;
(g) notice of the time and place of the oral hearing if one is held;
(h) the right to be present throughout an oral hearing;
(i) the right to obtain representation.
The right to a decision from an unbiased decision maker
The rule against bias ensures that decisions are both fair and are seen to be fair. The rule applies to both actual bias and the appearance of bias. A reasonable apprehension of bias exists if an informed, reasonable, and right minded person would think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide the matter fairly. The onus for establishing either actual bias or the appearance of bias is on the party who makes the allegation.
Members of the appeal tribunal or a panel must avoid all real or apparent conflicts of interest. It is the responsibility of each member to actively inquire into and consider any possible conflicts of interest and, on recognizing a conflict, withdraw from the panel.
The right to a decision from the person who hears the case
This means that a decision maker who hears the case must decide the case and cannot delegate the power to someone else.
The right to reasons
Reasons are part of procedural fairness. The appeal tribunal is statutorily required to provide written reasons. Reasons must be sufficient to allow the parties to understand the decision maker’s reasoning.
APPENDIX D
Evidentiary Matters
The appeal tribunal is not bound to follow strict rules of evidence. However, knowledge of the basic principles of evidence and the reasoning behind them assists panels in deciding what “weight” or importance to give to particular pieces of evidence. This summary provides basic information about how evidence may be received and assessed, but is not intended as a complete review of the law evidence
Types of Evidence
Evidence is any material presented in an oral or written hearing to prove a fact at issue in an appeal. The most common types of evidence in appeals before the appeal tribunal are oral evidence from a party or witness at an oral hearing and documentary evidence, which includes the record from the board. However, evidence could also include demonstrations, physical objects or any other material to prove a fact.
Evidence may be direct evidence or hearsay evidence:
· Direct evidence comes from a witness who has firsthand knowledge of a fact, in that they actually saw, heard or otherwise perceived the facts relevant to an appeal.
· Hearsay evidence is indirect. It comes from a witness who has second-hand knowledge of a fact. They may have been told the information by another person, or read it in a document. Courts generally do not accept hearsay evidence to prove the truth of a fact because of its potential to be inaccurate where the credibility of the source of the evidence cannot be tested. While the appeal tribunal is not bound by that rule, and can admit hearsay evidence, a panel will generally give hearsay evidence less weight than direct evidence. It is always preferable for the person who perceived the event directly to provide evidence at an appeal.
Expert evidence is provided by witnesses who have particular expertise to provide an opinion on a subject relevant to an appeal. Expert evidence is typically provided by physicians and other health care providers. If a witness has no expert qualification in a particular area, their personal belief is merely an opinion and not relevant to an appeal.
Relevance
The appeal tribunal will only admit evidence that is relevant to the issues under appeal. Evidence is relevant if it tends to establish the existence or non-existence of a fact in issue. A panel may prohibit a party from introducing irrelevant evidence. Before doing so, it will permit the parties to explain why the evidence is relevant.
Assessing Evidence
In making a decision, a panel will determine what “weight”, or importance, to attach to the evidence. This means that a panel will assess how much the evidence can be relied on to determine an issue in question based on whether the evidence is believable, internally and externally consistent, plausible, and credible.
The following factors can influence the weight that an appeal panel gives to evidence:
· Direct evidence is generally given more weight than hearsay evidence. This is because hearsay evidence is second-hand and the source of the information cannot be questioned about it. For example, the evidence of someone who saw something happen is better than the evidence of someone who only heard about it afterwards, from someone else.
· Evidence that is credible will be given more weight than evidence that is not credible. Credibility is established by indicators that the witness is being truthful. For instance, a panel will consider whether a witness’ evidence is internally consistent, logical, and consistent with prior statements of that same witness.
· Evidence that is reliable will be given more weight than evidence that is not reliable. For instance, a credible witness may be mistaken in their evidence, such that their evidence is not reliable. A panel will therefore test the objective accuracy of a person’s evidence by considering whether the evidence is externally consistent with other evidence. In other words, a panel will consider whether the evidence is consistent with the proven or undisputed facts in the case. This involves consideration of what is most reasonable and probable when the case is viewed as a whole.
MOTION: To approve the above Rules of Practice and Procedure
MOVED BY: Jeff Sloychuk
SECONDED BY: Wayne Huffman
All in agreement. Motion carried.
Approval date: November 17th 2022
Effective date: January 1st, 2023