Highlights of Noteworthy Decisions

Decision 1729 18 R
E. Smith
  • Second Injury and Enhancement Fund {SIEF}
  • Downside risk
  • Reconsideration (natural justice)
  • Reconsideration (procedural error) (notice)

Decision No. 1729/18 rescinded the employer's SIEF entitlement without providing notice of downside risk. The employer brought an application for reconsideration and requested that they be allowed to withdraw the appeal.

The application was granted. The appeal was withdrawn.
There was an error of natural justice in that notice was not provided to the employer and submissions were not obtained before the SIEF relief previously granted by the Board was rescinded.
Tribunal Decisions No. 3512/18R, 3227/18R, and 3196/18R recently considered the issue of downside risk and found that notice of downside risk is not always required. However, the Vice-Chair in this appeal found that in most instances, a party to the Tribunal has a right of notice of the downside risk if a panel or vice-chair determines that the benefits already granted by the Board are in issue. There may be some instances where the particular circumstances of the case provide adequate notice so that additional notice is not necessary, but that is not the usual case.
The requirement for notice is a rule of natural justice that applies to both worker and employer appeals and to oral and written appeals. Notice of the downside risk ensures that a party knows the case it has to meet. Unless it is clearly the case that the party is aware of the downside risk, explicit notice is required as a matter of natural justice.
Tribunal practice has been to provide notice of a downside risk except in the case of a few outlier decisions. There is no consistent or clear line of Tribunal decisions that has determined that notice of a downside risk may be dispensed with. In the absence of a Practice Direction, the general rules of natural justice applied.
The WSIB Appeals Services Division Practice and Procedures document indicates that notice of a downside risk is given at the ARO level. This is consistent with the general approach of Tribunal case law. Parties would reasonably assume that the Tribunal would adopt the same approach as in the case law and the Board's practice document.
The experience of the representative is not relevant to the notice issue. Notice should be provided in terms that are sufficiently clear that any representative should be able to know the case they have to meet. The requirement for clear notice should not vary from case to case or representative to representative.
In the case of SIEF appeals, a reference to SIEF "quantum" in a Hearing Ready Letter is insufficient notice of a downside risk. A reference to a quantum issue is not sufficient notice in the broad range of quantum appeals for benefits to be reduced without an opportunity for submissions. SIEF appeals are not sufficiently different from other appeals to mean that the presence of a downside risk can be assumed from the general wording in the Hearing Ready Letter.
Notice of a downside risk may result in a request to withdraw the appeal. Decision No. 3512/18R raised the concern that this provides an opportunity for the appellant to withdraw and continue receiving benefits to which they are not entitled. However, if the party is permitted to withdraw their appeal, then there has not been a decision from the Tribunal on entitlement. A preliminary view from a vice-chair or panel of a downside risk issue is not a determination on the issue. Moreover, a party may not withdraw an appeal as of right. A vice-chair or panel may deny the request to withdraw if they determine that it would be an abuse of process to permit a withdrawal. The appropriate process is to provide notice of the downside risk, obtain submissions about the downside risk, and if there is concern about abuse of process, also obtain submissions on whether the withdrawal should be allowed.
In the present appeal, there was not sufficient notice to alert the employer that the SIEF benefits awarded by the Board might be rescinded without further notice. There was an error in the administrative process that led to the decision because notice of downside risk was not provided. The decision did not address why notice was not provided. The threshold test for reconsideration was met and the decision was re-opened. As there were no concerns about abuse of process in the employer's request to withdraw the appeal, the appeal was withdrawn.