Highlights of Noteworthy Decisions

Decision 1861 10 IR
E. Smith - M. Christie - D. Broadbent
  • Reconsideration (new evidence)
  • Time limits (appeal) (new evidence)

The worker's estate appealed a decision of the Appeals Resolution Officer in 1997 denying the worker entitlement for lung cancer.

The ARO characterized the issue as lung cancer arising out of workplace exposure. However, in the body of the decision, the ARO addressed only silica exposure. On the appeal to the Tribunal, the estate wanted to add the issue of exposure to PAHs. In a ruling issued by memorandum, a prior panel accepted that the issue under appeal was the broad issue of whether the worker's cancer resulted from workplace exposure. However, the prior panel noted that s. 125(2) of the WSIA requires not only that the appeal be filed with the Tribunal within the time limit but also that the notice of appeal indicate why the Board decision was incorrect or should be changed. In the notice of appeal, the estate indicated that the reason for the appeal was that the lung cancer was caused by the workplace. The prior panel requested submissions from the estate in which the estate identified the exposures in issue as silica and PAHs only. The prior panel concluded the reason for appeal in the notice of appeal was not sufficient to identify entitlement based on exposure to PAHs as an issue and that the estate did not meet the time limit for appeal regarding exposure to PAHs. However, considering other factors, the prior panel granted an extension of the time to appeal, so that the hearing would consider the appeal with respect to both silica and PAHs.
The estate then wanted to add issues regarding entitlement based on exposure to benzene, radiation and asbestos. To do so, the estate applied for reconsideration of the ruling that the time limit applied to additional issues. In Decision No. 1861/10I, the panel denied the application for reconsideration.
As the hearing proceeded, an employer witness testified that the employer had used asbestos covers on moulds. The worker now applied for reconsideration of Decision No. 1861/01I, which declined to consider asbestos exposure, based on this new evidence.
The Panel decided to re-open its prior ruling in Decision No. 1861/10I, but only with respect to the limited issue of the use of asbestos mould covers in the time from 1972 to 1977.
The issue could be characterized as a reconsideration request of the prior ruling based on new evidence or as a new request to extend the time limit to appeal to address this exposure based on new evidence. The test in Tribunal practice directions is slightly different in the two contexts, but it was not necessary to address which characterization is more appropriate as the result is the same. The essential question is whether the new evidence is sufficiently central and probative that it ought to be considered despite the extensive delay before it came to light.
There was no new probative evidence with respect to asbestos exposure in general or with respect to use of asbestos covers after 1977. The evidence was only sufficiently probative with respect to the period prior to 1977.
The new evidence came to light through testimony of an employer witness. This testimony was not obtained until eight years after the prior panel's ruling that the time limit had not been met with respect to exposures other than silica and PAHs. However, the prior panel also ruled that the Tribunal had jurisdiction to consider all exposures but would not consider asbestos because the time limit had not been met and, in any event, the issue had been withdrawn. The Panel noted that a withdrawal is not a disposition of an appeal. A party may seek an extension of time to renew the appeal. In appropriate cases, new evidence may be found to be sufficient basis to re-open an issue or to extend the time to appeal.
The application to re-open the asbestos issue was granted in part, with respect to the issue of exposure to mould covers from 1972 to 1977.