Highlights of Noteworthy Decisions

Decision 39 20 R
22/01/2021
R. McCutcheon
  • Jurisdiction, Tribunal (appealable issue)
  • Jurisdiction, Tribunal (over Board process)
  • Reconsideration (jurisdictional error)

Decision No. 39/20 found that the employer was entitled to access to the worker's file, with some exceptions. The worker applied for reconsideration of Decision No. 39/20.

The worker took issue with the finding of the original vice-chair that the correctness of the Board's finding that the employer representative's direction of authorization was valid was not an issue before her.
The Tribunal Chair stated that the appealable issue in this proceeding was whether the employer was entitled to access to the worker's file. The validity of the employer's authorization was the worker's representative's argument to support the objection to such access being granted. The original vice-chair appropriately addressed the argument when she indicated she was satisfied that the employer's representative was the duly authorized representative for the purpose of the appeal. In any event, even if the employer representative's authorization was not valid, the worker did not explain how this was relevant to the access issue.
Further, the Chair did not accept that the Tribunal has freestanding jurisdiction over the Board determination of whether a representative is authorized to represent a party. Administrative matters, such as the authorization of a representative, are not included in the list of issues within the Tribunal's jurisdiction in s. 123 of the WSIA. There are sound policy reasons for the Tribunal's consistently-held principle that it does not have jurisdiction over administrative decisions of the Board. The Tribunal is the final level of appeal for substantive workplace insurance matters. Tribunal decision-making should be guided by the substance of the case. In this case, the administrative and technical arguments raised by the worker about the representative's authorization to represent the employer had little to do with the merits of the case or the employer's right of access to relevant case materials.
The application to reconsider was denied.