Highlights of Noteworthy Decisions

Decision 1061 22 E
19/08/2022
P. Allen
  • Jurisdiction, Tribunal (time limits)
  • Procedure (inactive status)
  • Time limits (appeal) (intent)
  • Time limits (appeal) (length of delay)
  • Time limits (appeal) (staleness)

The issue on this application was whether the worker's request to extend the time to appeal should be granted.

The application was denied.
The worker's representative submitted that the Tribunal did not have jurisdiction to determine that the worker's appeal was abandoned in March 2021. The worker's representative also submitted that the Tribunal did not have jurisdiction to request that the worker submit a new Notice of Appeal in late 2021 (after the worker's appeal was abandoned) as the Tribunal had already granted a time extension in 2008 as per Decision No. 2147/08E.
The Vice-Chair noted that section 131 of the WSIA allows the Tribunal to: "...determine its own practice and procedure in relation to applications, proceedings and mediation." The Tribunal has also developed a Practice Direction entitled "Closing Appeals by the Tribunal" which explains the process the Tribunal follows prior to abandoning an appeal. The Practice Direction states that the Tribunal may consider abandoning an appeal in cases where the appellant "fails to take action to progress an inactive appeal to a Tribunal hearing". Further, the Practice Direction states that prior to abandoning an appeal the appellant is issued a letter entitled "Notice of Intention to Close" which "warns the appellant that the Tribunal may close the appeal as abandoned" and also provides a date by which the appellant must respond. Finally, the Practice Direction states that "If the appellant does not respond to the Notice of Intention to Close letter, the appeal is closed without further notice".
It was noted that when the worker failed to progress his inactive appeal to a Tribunal hearing over the period from 2008 to 2022, the Vice-Chair Registrar considered whether the worker's appeal should be abandoned. The Vice-Chair found that this was a reasonable course of action, given that the worker's appeal remained in inactive status for over 13 years. The Vice-Chair Registrar also issued a "Notice of Intention to Close" letter to the worker's representative (who had acknowledged receipt) providing a one year period by which the appellant must notify the Tribunal that they were ready to proceed with the appeal of the 2006 ARO decision. The Vice-Chair found that the Vice-Chair Registrar followed the requirements of the Practice Direction regarding abandoning appeals by issuing the March 2, 2020 Notice of Intention to Close letter. In addition, while the Practice Direction states that the "typical" timeframe for response from the appellant is 30 or 60 days, the appellant in this appeal was given 12 months in which to respond. When no response was received within the 12 month time frame provided, the Vice-Chair Registrar appropriately closed the worker's appeal.
The Vice-Chair also noted additional factors that did not support the worker's request for a time extension. Firstly, there were a lack of reasons to explain the 13 year delay. The Vice-Chair found that the worker's delay of roughly 13 years in advancing his appeal at the Tribunal, as well as a 13 year delay in advancing additional entitlement issues at the Board, indicated that the worker did not form a bona fide or sincere intention to pursue his appeal at the Tribunal. The Vice-Chair acknowledge that the Board's claim file likely contained medical reports needed to adjudicate the worker's appeal; however, the extensive delay would negatively affect the worker's ability to accurately recall events. In addition, the worker's compensable accident occurred in 1992 (roughly 30 years ago), and this long lapse of time would make it difficult to secure witnesses or medical/documentary evidence.
It was also submitted that the worker's appeal of the January 25, 2022 decision would be prejudiced were the Tribunal to deny entitlement to a time extension to appeal the 2006 ARO decision. The Vice-Chair did not see the reason why the worker's appeal of these issues could not proceed absent the issues contained in the 2006 ARO decision, nor did the worker appropriately outline how these issues were interconnected.