- Reconsideration (delay)
- Statutory interpretation (principles of) (legislative intent)
The applicants requested a reconsideration of Decision No. 229/23, which denied their right to sue application related to litigation arising from injuries that the respondent sustained in a snowmobile accident on February 21, 2013. The applicants' reconsideration request was filed on or about July 28, 2023, approximately three months after the expiration of the 40-day time limit for filing a reconsideration request of Tribunal decisions addressing right to sue applications. The issue in this proceeding was whether it was an appropriate exercise of discretion to assign this late reconsideration request to a Vice-Chair or Panel, which turned on the following questions: 1) Is there a good explanation for the delay?; 2) Does the request raise a significant issue which has a reasonable prospect of meeting the threshold test?; and, 3) Is there prejudice to any party?
The application for an extension of time to file this reconsideration request was denied.The Chair found that a reasonable explanation for the delay had not been established. It was noted that a three-month delay was proportionally lengthy relative to the time limit of forty days, in that it was more than twice as long as the limitation period itself. The applicants relying on the incorrect Reconsiderations Practice Direction was not considered a persuasive explanation as this practice direction hyperlinked to the Right to Sue Practice Direction. In addition, the correspondence from the Tribunal not citing a time limit for filing a reconsideration was not a significant factor, as the request is an extraordinary remedy under the WSIA, and not a right of any party. Thus, it would not be appropriate or necessary for the Tribunal to include information about the reconsideration process in a final decision letter.Next, the Chair found that this reconsideration request did not raise a significant issue which had a reasonable prospect of meeting the threshold test. The Chair found that the Vice-Chair had appropriately addressed the statutory text, context and purpose in the interpretation of subsection 28(4), in accordance with the modern principle of statutory interpretation, as affirmed by the Supreme Court of Canada in Vavilov. Decision No. 229/23 also bore the hallmarks of reasonableness in that it was justified, intelligible and transparent. The applicants argued that the Vice-Chair failed to utilize a purposeful approach in interpreting the exception contained in subsection 28(4) of the WSIA; however, did not explain how this would have changed the outcome of the original decision, nor how the interpretation adopted by the Vice-Chair created an absurd result that could not have been intended by the Legislature. The Tribunal has interpreted subsection 28(4) (and predecessor provisions) on numerous occasions to find that it applies as an exception to the general bar to actions by workers against Schedule 1 employers. Finally, the respondent asserted that she had been prejudiced by the delay as her action against the applicants had been on hold for a significant period of time pending the outcome of the applicants' right to sue application. In the Chair's view, the Right to Sue Practice Direction may be seen to create an inherent presumption of prejudice associated with delay in bringing a reconsideration of a right to sue application. It was submitted by the applicants that the respondent's case remains ongoing and there is no prejudice in granting a minimal extension; however, this did not address the issue of the costs associated with the additional proceeding as specifically addressed in the Practice Direction. Even in the absence of prejudice, the Chair noted that the primary and secondary factors were determinative of this application.