- Time limits (appeal) (diligence of applicant)
- Time limits (cross-appeal)
The issue on this application was whether the employer's request to extend the time to appeal should be granted.
The appeal was allowed. The worker did not file their notice of appeal until May 27, 2022, three days prior to the expiry of the six-month time limit to appeal. Notice of the worker's appeal was not sent to the employer until June 27, 2022, after the expiry of the six-month time limit, and the employer sent their response form on July 28, 2022. While the employer's submissions explained the delay in responding to the worker's appeal, their submissions did not explain the delay in appealing from the ARO decision. The Vice-Chair agreed with Decision No. 517/02I, however, that it is appropriate to provide a reasonable period of time for a respondent to file a cross-appeal upon receiving notice from the Tribunal of the appeal. To do otherwise would be to allow for a distinct procedural disadvantage to a respondent. The Vice-Chair also agreed with Decision No. 2354/18E, that in considering whether an intention to appeal occurred, one should consider the length of delay in forming an intention to bring a cross-appeal - within the context of the time when the appeal was filed with the Tribunal and when notice of the appeal was given to the respondent. This approach is consistent with the requirements of procedural fairness. The Vice-Chair found that the employer formed an intention to appeal within a reasonable time of being notified of the worker's appeal.The Vice-Chair also noted that there was no evidence of bad faith or "mala fides" in the cross-appeal. Decision No. 517/02I states: "the filing of a cross-appeal cannot be considered mala fides or prejudicial to the worker. The practice of allowing cross-appeals as part of the response process is known to the worker's representative. The risk of cross-appeal exists." Further, the Vice-Chair noted that both the employer and worker have the right under the WSIA section 125 to appeal an ARO decision to the Tribunal, subject to meeting the six-month statutory time limit, or the Tribunal permitting the extension of that time limit. Tribunal procedures permit a cross-appeal by either party in response to an appeal. Lastly, the Vice-Chair was satisfied that the worker would have a full opportunity to prepare and present their case, and to participate in the appeal and cross-appeal. The Vice-Chair found that there had been no prejudice to the worker caused or exacerbated by the two-month delay in filing the notice of cross-appeal. It was noted that the employer had acted diligently once it was notified of the worker's appeal.