Highlights of Noteworthy Decisions

Decision 531 12
R. McCutcheon - J. Blogg - A. Grande
  • Abuse of process
  • Estoppel
  • Jurisdiction, Tribunal (final decision of Board)
  • Jurisdiction, Tribunal (over Board process)

The worker had eight claims with the Board in relation to work injuries, although there was some overlap between the claims. The worker appealed three decisions of Appeals Resolution Officers, giving rise to seven issues. Many of the claims related to injuries due to the nature of her job duties.

In a preliminary matter, the Panel considered a jurisdictional issue raised by the employer regarding the worker's appeal from the decision of one of the AROs. The employer submitted that the ARO should not have taken jurisdiction because it did not reflect a new decision when compared to an earlier decision of one of the other AROs.
The Panel considered whether it had jurisdiction and, if so, whether it should decline to exercise its jurisdiction on the basis of abuse of process.
The ARO decision in question was a final decision of the Board which the worker appealed within the statutory time limit. Accordingly, the Tribunal had jurisdiction over the appeal. The Tribunal does not have jurisdiction over the Board's process and procedure. In this case, there was a final decision of the Board, there may have been some overlap between the two ARO decisions but the nature of the claims was not the same and the time periods were different and the areas of injury were different.
There are two pre-conditions to establish an abuse of process: the proceedings are oppressive or vexatious; and it violates the fundamental principles of justice underlying the community's sense of fair play and decency.
This was a case that became complex over time. The worker has a significant interest at stake. There was no unusual or excessive delay as compared to other appeals that come before the Tribunal. The worker filed her appeal in a timely manner. The worker was following the available route of appeal. The Board established separate claims. The worker was entitled to pursue legitimate avenues of appeal. An abuse of process was not established.
The Panel concluded that it had jurisdiction and that it would exercise that jurisdiction.
On the merits, the worker's appeal was allowed in part. The worker had entitlement for a number of the claimed conditions.