Difference between pages "The Right to Vote (5:VII)" and "Appeals in Worker's Compensation Claims (7:XII)"

Revision as of 22:04, 17 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.

If the worker (or the employer) disagrees with a Board decision, they may appeal the decision to the Review Division (“RD”) within 90 days of the Board’s decision. The RD is a review body internal to the Board; links to RD material, including RD appeal forms, are available on the Board website ( www.worksafebc.com/en/review-appeal). The RD must issue a decision within 180 days of the appeal being filed. The RD decision may then be appealed to an independent tribunal, the Workers’ Compensation Appeal Tribunal (“WCAT”) within 30 days of the RD decision. WCAT appeal forms are available on the WCAT website: www.wcat.bc.ca.

Section 123(1) of the Act [Former Act, s. 96(4)] does allow the Board to “reconsider” any past decision, on its own initiative, but s. 123(2) of the Act [Former Act, s. 96(5)] prohibits it from doing so if a decision is more than 75 days old unless there has been fraud or misrepresentation (such as when videotape may show that the worker is less disabled than claimed) or if there is a clear error or omission. The Board interprets this to mean that the reconsideration must be completed, not just initiated, by the 75th day.

Please note that once a request for a review has been filed, the CM is no longer allowed to proceed with a reconsideration.

A. Internal Review - Workers’ Compensation Review Division

A worker, a deceased worker's dependent, or an employer may request a review of any of the following decisions of the Board:

a decision respecting a compensation or rehabilitation matter (e.g. denial of benefits, or quantum of benefits);
a decision levying payment by the employer for failure to comply with the statute; or
a decision respecting an occupational health or safety matter.
a decision respecting an application to reopen a matter because of a recurrence of injury or significant change in a compensable medical condition.

The Review Division may also reconsider its own decisions in some cases. It can only undertake such a reconsideration during the first 23 days after the decision is made, and only if no appeal has yet been filed to the WCAT. Once a reconsideration is directed by the Chief Review Officer, the Review Division can change a decision on the basis of new evidence that didn’t exist or couldn’t have been presented previously with “due diligence” on the part of the applicant.

Once the period for directing a reconsideration has passed, the matter must be appealed to WCAT. For decisions that cannot be appealed to the WCAT, like vocational rehabilitation issues and many pension amounts, there will be no way for anyone in the system to change an incorrect decision based on new evidence, even if it could not possibly have been presented earlier and shows conclusively that the decision was wrong. The matter must be taken to judicial review.

1. Appeal Procedure- Workers' Compensation Review Division

A complete account of the review process goes beyond the scope of this chapter. A good starting point in preparing a review of the Board’s decision is to go to www.worksafebc.com and look for the “Manage a Claim” section, under the “Claims” menu. Follow the link under the heading “If you disagree with a claim decision”. There is a Policy and Procedures Manual that describes the process in detail, as well as provides the necessary forms and applications. Limitations as to what kinds of decisions can be appealed, and what persons can appeal them, are clearly stated within this section.

To request a review, the worker must complete and submit a two-page Request for Review form (available online). This form may be submitted by mail or by fax. See Appendix D: Checklist for Review Division Appeals.

B. Appeal to Workers’ Compensation Appeal Tribunal (WCAT)

A worker, a deceased worker’s dependent, or an employer may appeal most decisions of the Review Division to WCAT. The following classes of decisions may not be appealed to WCAT (Act, s. 288 [Former Act, s. 239] and Workers Compensation Act Appeal Regulations, BC Reg 321/2002):

a response to a workers complaint respecting prohibited action or failure to pay wages (Act, s. 50 [Former Act, s. 153])
decisions respecting vocational rehabilitation (Act, s. 155 [Former Act, s. 16]);
amount of a functional pension if the possible range is 5% or less, and commuting a pension into a lump sum payment (Act, ss. 195, 230 and 231 [Former Act, ss. 23 and 35]);
decisions applying procedural time limits specified by the Board under s. 338 of the Act [Former Act, s. 96(8)];
decisions refusing to allow an extension of time to file a request for review (Act, s. 270(2) [Former Act, s. 96.2(4)]);
decisions relating to the conduct and procedural policies implemented by the Review Division for the internal review (Act, ss. 272(2) to (5) and (8) [Former Act, s. 96.4(2) to (5) and (7)]);
orders by the chief review officer as to whether or not to suspend the operation of a decision pending completion of the review (Act, s. 270(3) [Former Act, s. 96.2(5)]);
decisions about whether or not to refer a decision back to the Board following completion of the Review Division hearing (Act, s. 272(9)(b) [Former Act, s. 96.4(8)(b)]); or
decisions respecting the conduct of a review in respect of any matter that cannot be appealed to WCAT under s. 288(2)(b)-(e) of the Act [Former Act, s. 239(2)(b) - (e)].

As an administrative Tribunal, WCAT is subject to the expectations of procedural fairness common to all such bodies (i.e. appellant’s right to be heard, right to a decision from an unbiased decision maker, right to a decision from the person who hears the case, and a right to reasons for the decision). As an independent body, WCAT is not bound by any WCB findings and has exclusive jurisdiction to make any findings of fact it deems relevant to the appeal (pre-revision WCA s 254 as interpreted in Preast v. Workers’ Compensation Appeal Tribunal, 2015 BCCA 377); this likely applies to its revised equivalent, the current s 308). Additionally, WCAT is not bound by its own previous decisions unless departing from them is clearly irrational (Macrae v. Workers’ Compensation Appeal Tribunal, 2016 BCSC 133).

WCAT’s Manual of Rules of Practice and Procedure (MRPP) is accessible online as are appeal forms, guidelines and information about filing appeals.

1. Appeal Procedure – Workers’ Compensation Review Division

A good starting point in preparing a review of the Board’s decision is to go to www.worksafebc.com. The “Resources” section provides access to various appeal forms, as well as an info sheet with further information on the appeals process. The WCAT site also contains a detailed manual. Parties applying for reconsideration must write to the Tribunal Counsel Office. WCAT will not accept applications for reconsideration by telephone. After WCAT makes a decision to allow an appeal, WCB implements it into its decision. Note that WCAT can reimburse workers for the cost of acquiring medical reports that are reasonably useful to the hearing.

2. Clarifications, Corrections, Missed Issue

WCAT may correct accidental errors or omissions (such as typographical or numerical) if the appellate requests it. The appellate should request corrections. The appellate should request clerical corrections as soon as possible and WCAT aims to have it amended within 90 days. WCAT may clarify their decision if it is not clear. The appellate must request clarification in writing within 90 days of the date that the decision was served, and the panel will decide if clarification is necessary. If WCAT did not decide on an issue in the appeal, the appellate must request this in writing to the Tribunal Counsel Office. If the panel that made the decision agrees that they did not decide on an issue in the appeal, then they will complete the decision by writing an addendum to the decision.

3. Reconsideration of WCAT Decisions

WCAT may reconsider a final decision for very limited reasons after its powers were considered by both the BCCA and Fraser Health Authority, supra.

Under the WCA, a WCAT panel may change the outcome of a WCAT decision if there is new evidence. In addition, WCAT may still reconsider a WCAT decision under common law grounds if there is procedural unfairness or a true jurisdictional error. Note that a “true jurisdictional error” is an argument that should be used with caution, as the SCC has ceased recognizing jurisdictional questions as a separate category of questions separate from any other type of question on judicial review. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,paras 65 - 68 On these grounds, WCAT may rehear all or part of the appeal and come to a different conclusion. However, WCAT cannot change the outcome of a WCAT decision because it is incorrect, unreasonable, or patently unreasonable. In this respect, the WCAT is final, reviewable only by a court on judicial review (the time limit to apply for JR is 60 days, under the Administrative Tribunals Act).

Information regarding reconsideration of WCAT decisions is available on the Post-Decision Information Guide on the WCAT website. There is no time limit on applying for reconsideration. To apply for reconsideration, a worker may fill out the Application for Reconsideration form and send it to the Tribunal Counsel Office. A worker can also apply for reconsideration by writing a letter to the Tribunal Counsel Office explaining how they meet the grounds for reconsideration.

WCAT makes a jurisdictional error if it:

Decided on something it had no power to decide (Example: if WCAT tried to make a binding decision on a residential tenancy issue when it only has authority to make decisions on workers compensation issues).
Failed to decide on something it was supposed to decide (Example: a worker properly appealed a decision and WCAT refused or failed to make a decision).
Was procedurally unfair (Example: WCAT was unfair in its decision making process, such as refusing to allow a worker to make submissions for an appeal).

Section 310(3) of the WCA [Former Act, s. 256(3)] allows for a party to a completed appeal to apply for reconsideration of a decision based on new evidence which:

is substantial and material to the decision, and
did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

If you apply for reconsideration based on new evidence, you must explain:

why the new evidence is substantial (has weight and supports a different conclusion);
how it is material (is relevant to the decision);
whether or not the evidence previously existed; and
if it did exist previously, why you did not discover (and submit) it at the time of the original hearing.

A claimant can only apply once for reconsideration on each ground, so it is important that they are ready. This can be done at the same time or separate times for each ground. If applying for reconsideration of evidence, include the new evidence in the application. They will not be able to re-apply multiple times for any new evidence that might become available in the future.

The first stage of reconsideration results in a formal written decision, issued by a WCAT panel, determining whether there are grounds for reconsideration. If the panel concludes that there are no grounds for reconsideration, WCAT will take no further action on the matter. If a panel decides that there are grounds for reconsideration, the original decision will then be found void (in whole or in part) and the application will proceed to the second stage at which a WCAT panel will hear the appeal once again. The WCAT will decide whether the second stage will be conducted by oral hearing or written submission.

WCAT has the authority to reconsider both WCAT and the former Appeal Division decisions. WCAT does not, however, have the authority to reconsider decisions by the former Review Board or the current Review Division. Objections to those decisions will be treated as appeals or applications for extensions of time to appeal. Additionally, WCAT cannot reconsider its own decisions for unreasonableness, patent unreasonableness, or error (Fraser Health, supra).

In view of the finality of these provisions, especially where a decision has not been appealed, any worker who is not completely satisfied with a decision should request a review by the Review Division and if allowed, an appeal to the WCAT. This will preserve a residual right to present new evidence in the future, even if the appeal is unsuccessful.

WCAT decisions are accessible on the website under “prepare your case” which is listed under “appeal a decision”. To view previous WCAT decisions made on applications for reconsideration, you can select “Search past appeal decisions” under “review decisions for appeals that are similar”.

C. Judicial Review (JR)

A party may apply for judicial review at the same time that they apply for a reconsideration of a decision from WCAT. A party must apply for judicial review of a WCAT decision by the British Columbia Supreme Court within 60 days of the date on which a decision is issued. Under certain circumstances, the court may extend the time for applying. Due to clear language in the Administrative Tribunal Act, Judicial Review of WCAT decisions are held to the standard of patent unreasonableness on most questions (constitutional issues and questions of so-called true jurisdiction are exceptions). This is the highest level of judicial deference and limits the court's ability to interfere unless the decision was “openly, evidently, clearly wrong” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Fraser Health, supra). Possible judicial review cases should be referred to lawyers as it is very difficult to file and conduct a judicial review without a lawyer’s assistance. See Chapter 5: Public Complaints Procedures for more information about judicial review.

Note that if Judicial Review and reconsideration are both possible, it is advisable for the worker to file their paperwork for Judicial Review within the 60-day time limit and then apply for reconsideration. This ensures that they will still be able to pursue Judicial Review if their reconsideration is denied.

Possible Judicial Review cases should be referred to lawyers, as it is very difficult to file and conduct a judicial review without a lawyer’s assistance. See Chapter 5: Public Complaints Procedures for more information about judicial review.

NOTE: According to Denton v British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 40, where an appeal raises constitutional issues, those issues must be raised prior to the JR stage at the British Columbia Supreme Court. However, as only the Review Division has the authority to decide constitutional issues while WCAT does not, these issues must be raised during the initial review stage.

D. Access to Files

Under the Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165 (FIPPA), all workers have the right to receive a copy of their file. Employers have the right to obtain a copy of the Board’s file if an appeal is pending or if a decision is made. The Act, however, limits an employer’s ability to use this information in non-employment related issues. An employer, for example, may not use the information contained in the worker’s file for disciplinary purposes.

A worker’s WCB claim file that is disclosed for purposes of an appeal or a Freedom of Information request should contain all of the information pertaining to the Board’s decision, as well as copies of any decisions regarding the claim.

Prior to May 2009, a file was divided into various sections such as Claims, Medical, Accounts, and Memo. Usually, the papers were filed in chronological order. Files are organized differently under the CMS data management system. Now, the preferred method of disclosure is by way of an encrypted .pdf file on a CD. The first disclosure will be a complete copy of the file, not just an update.

Overall, the adoption of electronic (E-file) rather than paper files has reduced administrative delays due to files being in use by other departments at the WCB or WCAT, but it has also decreased the detailed information explaining how decisions were reached, as handwritten notes and other documents are sometimes omitted. A request for disclosure under the FIPPA usually results in a more thorough search for such records and is occasionally advisable in cases where all information is needed. At times, the Board may not disclose all of the relevant evidence in its possession. Some of the missing information may be helpful for appeals, such as the actual observations of the Board’s staff during a functional evaluation, rather than just a final report.

@@ Line 1: / Line 1: @@
 {{REVIEWED LSLAP | date= June 30, 2021}}
-{{LSLAP Manual TOC|expanded = complaints}}
+{{LSLAP Manual TOC|expanded = workers}}
-== A. Introduction ==
+If the worker (or the employer) disagrees with a Board decision, they may appeal the decision to the Review Division (“'''RD'''”) '''within 90 days of the Board’s decision'''.  The RD is a review body internal to the Board; links to RD material, including RD appeal forms, are available on the Board website ( [http://www.worksafebc.com/en/review-appeal www.worksafebc.com/en/review-appeal]).  The RD must issue a decision within 180 days of the appeal being filed. The RD decision may then be appealed to an independent tribunal, the Workers’ Compensation Appeal Tribunal (“'''WCAT'''”) within '''30 days of the RD decision'''. WCAT appeal forms are available on the WCAT website: [http://www.wcat.bc.ca www.wcat.bc.ca].
-The right to participate in the selection of their elected representatives is a basic right enjoyed by the citizens of any democracy. While this has always been recognized to some extent in Canada, in 1982 the right to vote was entrenched in the constitution by section 3 of the ''Canadian Charter of Rights and Freedoms''. Under section 3, “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”.
+Section 123(1) of the Act [Former Act, s. 96(4)] does allow the Board to “reconsider” '''any''' past decision, on its own initiative, but s. 123(2) of the Act [Former Act, s. 96(5)] prohibits it from doing so if a decision is more than '''75 days old''' unless there has been fraud or misrepresentation (such as when videotape may show that the worker is less disabled than claimed) or if there is a clear error or omission. The Board interprets this to mean that the reconsideration '''must be completed''', not just initiated, by the 75th day.
-While this right is qualified by section 1 of the ''Charter'', it is not subject to the overriding power provision (the “notwithstanding clause”) of section 33. As a result, any government wishing to place restrictions on the right to vote must do so in a manner that is reasonable and demonstrably justified in a free and democratic society under section 1.
-In this chapter, the discussion of voting rights will focus primarily on the requirements a person must meet to be eligible to vote in provincial, federal,
+Please note that once a request for a review has been filed, the CM is no longer allowed to proceed with a reconsideration.
-and municipal elections.
-== B. British Columbia Provincial Elections ==
-Eligibility requirements for BC provincial elections are outlined in the ''Election Act'', RSBC 1996, c 106. A student should consult this ''Act''  if a client has a specific problem as the ''Act'' is too lengthy to be discussed in detail in this chapter.
+== A. Internal Review - Workers’ Compensation Review Division ==
-=== 1. General Information ===
+A worker, a deceased worker's dependent, or an employer may request a review of any of the following decisions of the Board:
+*a decision respecting a compensation or rehabilitation matter (e.g. denial of benefits, or quantum of benefits);
+*a decision levying payment by the employer for failure to comply with the statute; or
+*a decision respecting an occupational health or safety matter.
+*a decision respecting an application to reopen a matter because of a recurrence of injury or significant change in a compensable medical condition.
-The province is divided into various electoral districts, each represented by an elected Member of the Legislative Assembly (MLA). Each  district has a registrar of voters whose duty is to ensure that the election of candidates in that district is carried out properly. The elections process is supervised by the Chief Electoral Officer. Elections BC can be contacted at:
+The Review Division may also reconsider its own decisions in some cases. It can only undertake such a reconsideration during the first '''23 days''' after the decision is made, and only if no appeal has yet been filed to the WCAT. Once a reconsideration is directed by the Chief Review Officer, the Review Division can change a decision on the basis of new evidence that didn’t exist or couldn’t have been presented previously with “due diligence” on the part of the applicant.
-'''Elections British Columbia'''
+Once the period for directing a reconsideration has passed, the matter must be appealed to WCAT. For decisions that cannot be appealed to the WCAT, like vocational rehabilitation issues and many pension amounts, there will be no way for anyone in the system to change an incorrect decision based on new evidence, even if it could not possibly have been presented earlier and shows conclusively that the decision was wrong. The matter must be taken to judicial review.
-{{ResourcesLSLAP
+=== 1. Appeal Procedure- Workers' Compensation Review Division ===
-| address = P.O. Box 9275 Stn  Provincial Government <br /> Victoria, BC V8W 9J6
-| phone = Toll-free: 1-800-661-8683 <br />
-| online = [http://www.elections.bc.ca Website] <br /> Email: electionsbc@elections.bc.ca
-}}
-=== 2. Who Is Eligible to Vote ===
+A complete account of the review process goes beyond the scope of this chapter. A good starting point in preparing a review of the Board’s decision is to go to [http://www.worksafebc.com www.worksafebc.com] and look for the “Manage a Claim” section, under the “Claims” menu.  Follow the link under the heading “If you disagree with a claim decision”.  There is a Policy and Procedures Manual that describes the process in detail, as well as provides the necessary forms and applications.  Limitations as to what kinds of decisions can be appealed, and what persons can appeal them, are clearly stated within this section.
-Section 29 of the ''Election Act'' sets out who is eligible to vote in provincial elections. It states that in order to be eligible to vote in an electoral district, an individual must be a Canadian citizen over the age of 18, must be a registered resident of the electoral district,  must have been a resident of British Columbia for at least six months, and must not be otherwise disqualified.
+To request a review, the worker must complete and submit a two-page Request for Review form (available online). This form may be submitted by mail or by fax. See '''Appendix D: Checklist for Review Division Appeals'''.
-Although the requirement for individuals to be resident in British Columbia for six months seems to constitute a violation of section 3 of the Charter, case law has held similar provisions to be constitutional. In ''[https://www.canlii.org/en/yk/ykca/doc/1986/1986canlii3944/1986canlii3944.html?autocompleteStr=Re%20Yukon&autocompletePos=4 Re Yukon Election Residency Requirements]'', [1986] 2 BCCR (2d) 50 (CA), BC’s Court of Appeal sitting as the Yukon’s Court of Appeal upheld a 12-month residency requirement imposed by the territorial government. The court found that this was a reasonable limit that was justified because of the desirability of having only persons familiar with local conditions voting for local representatives.
-Section 30 disqualifies the following individuals from voting: the chief electoral officer, the deputy chief electoral officer, and anyone  prohibited from voting under Part 12 of the ''Election Act''.
+== B. Appeal to Workers’ Compensation Appeal Tribunal (WCAT) ==
-Keep in mind that this is just a general guide, and is not meant to be an exhaustive list. Consult the ''Election Act'' for more detailed and extensive information.
+A worker, a deceased worker’s dependent, or an employer may appeal most decisions of the Review Division to WCAT. The following classes of decisions may '''not''' be appealed to WCAT (Act, s. 288 [Former Act, s. 239] and ''Workers Compensation Act Appeal Regulations'', BC Reg 321/2002):
-Section 32 of the ''Election Act'' provides that individuals may only vote in an electoral district in which they are a resident. The ''Act'' defines a residence as the place where a person’s habitation is fixed, and to which, if they are absent, they intend to return. Note the following additional considerations:
+*a response to a workers complaint respecting prohibited action or failure to pay wages (Act, s. 50 [Former Act, s. 153])
-*Leaving one’s home temporarily does not affect one’s residency status, but if a person leaves with the intention to remain away either indefinitely or permanently, that person loses their status as a resident in BC.
+*decisions respecting vocational rehabilitation (Act, s. 155 [Former Act, s. 16]);
-*Persons entering the province temporarily are not considered to be resident for election purposes.
+*amount of a functional pension if the possible range is 5% or less, and commuting a pension into a lump sum payment (Act, ss. 195, 230 and 231 [Former Act, ss. 23 and 35]);
-*Generally, a person's residence is the place where their family resides, but if a person moves out of the family home and does not intend to return, the person's residence will be the new place they have moved to.
+*decisions applying procedural time limits specified by the Board under s. 338 of the Act [Former Act, s. 96(8)];
-*Single people reside where they sleep, regardless of where they eat or work.
+*decisions refusing to allow an extension of time to file a request for review (Act, s. 270(2) [Former Act, s. 96.2(4)]);
-*A change of residence occurs only if a person moves to and intends to remain in another place.
+*decisions relating to the conduct and procedural policies implemented by the Review Division for the internal review (Act, ss. 272(2) to (5) and (8) [Former Act, s. 96.4(2) to (5) and (7)]);
-*Canadian military personnel who reside in BC do not lose their resident status by leaving the province for extended periods of time in the  course of their employment. Spouses and children who accompany military personnel may also retain their BC residence status.
+*orders by the chief review officer as to whether or not to suspend the operation of a decision pending completion of the review (Act, s. 270(3) [Former Act, s. 96.2(5)]);
+*decisions about whether or not to refer a decision back to the Board following completion of the Review Division hearing (Act, s. 272(9)(b) [Former Act, s. 96.4(8)(b)]); or
+*decisions respecting the conduct of a review in respect of any matter that cannot be appealed to WCAT under s. 288(2)(b)-(e) of the Act [Former Act, s. 239(2)(b) - (e)].
-=== 3. Registration and Voting Procedures ===
+As an administrative Tribunal, WCAT is subject to the expectations of procedural fairness common to all such bodies (i.e. appellant’s right to be heard, right to a decision from an unbiased decision maker, right to a decision from the person who hears the case, and a right to reasons for the decision). As an independent body, WCAT is not bound by any WCB findings and has exclusive jurisdiction to make any findings of fact it deems relevant to the appeal (pre-revision WCA s 254 as interpreted in ''Preast v. Workers’ Compensation Appeal Tribunal'', 2015 BCCA 377); this likely applies to its revised equivalent, the current s 308). Additionally, WCAT is not bound by its own previous decisions unless departing from them is clearly irrational (''Macrae v. Workers’ Compensation Appeal Tribunal'', 2016 BCSC 133).
-Eligible voters who are not presently on the voters’ list in their district may obtain an application form from the registrar of the Electoral   District in which they reside. Occasionally the Registrar General will hire Deputy Registrars to visit residences to obtain new applications.
+WCAT’s ''Manual of Rules of Practice and Procedure'' (MRPP) is accessible [http://www.wcat.bc.ca online] as are appeal forms, guidelines and information about filing appeals.
-Upon receiving an application and being satisfied that the application is valid and correct, the District Registrar will add the applicant’s name to the voters’ list. That person is then eligible to vote in the next provincial election.
+=== 1. Appeal Procedure – Workers’ Compensation Review Division ===
-An eligible voter may also register at a voting place on the day of the election. Amendments to the ''Election Act'' enacted in 2008 require  that the applicant produce identification in the form of either (s 41(3)):
+A good starting point in preparing a review of the Board’s decision is to go to [http://www.worksafebc.com www.worksafebc.com]. The “Resources” section provides access to various appeal forms, as well as an info sheet with further information on the appeals process. The WCAT site also contains a detailed manual. Parties applying for reconsideration must write to the Tribunal Counsel Office. WCAT will not accept applications for reconsideration by telephone.  After WCAT makes a decision to allow an appeal, WCB implements it into its decision. Note that WCAT can reimburse workers for the cost of acquiring medical reports that are reasonably useful to the hearing.
-* one document, issued by the Government of British Columbia or Canada, that contains the applicant’s name, photograph, and place of residence;
-* one document, issued by the Government of Canada, that certifies that the applicant is registered as an Indian under the ''Indian Act'' (Canada);or
-* at least 2 documents of a type authorized by the chief electoral officer, both of which contain the applicant's name and at least one of which contains the applicant's place of residence.
-Alternatively, section 41.1 allows eligible voters without documentation to be “vouched” for by a voter registered in the applicant’s electoral district with documentation, a family member, or “a person having authority under the  common law or an enactment to make personal care decisions in respect of the applicant.”
+=== 2. Clarifications, Corrections, Missed Issue ===
-'''NOTE:''' In the 2013 provincial election, prescription pill bottles or inhalers with the applicant’s name were accepted as a valid form of  identification. This was done to address the unique challenges the homeless and those without government-issued identification face when exercising their right to vote.
+WCAT may '''correct''' accidental errors or omissions (such as typographical or numerical) if the appellate requests it. The appellate should request corrections. The appellate should request clerical corrections as soon as possible and WCAT aims to have it amended within 90 days. WCAT may '''clarify''' their decision if it is not clear. The appellate must request clarification in writing within '''90 days''' of the date that the decision was served, and the panel will decide if clarification is necessary. If WCAT did not '''decide''' on an issue in the appeal, the appellate must request this in writing to the Tribunal Counsel Office. If the panel that made the decision agrees that they did not decide on an issue in the appeal, then they will complete the decision by writing an addendum to the decision.
-When an election writ is issued, the District Registrar will advertise in newspapers announcing the closing day for applications to register.
+=== 3. Reconsideration of WCAT Decisions ===
-According to the court in ''[https://www.canlii.org/en/bc/bcca/doc/1985/1985canlii335/1985canlii335.html?autocompleteStr=Hoogbruin%20v%20BC%20(Attorney%20General)%20(1985)%2C%2070%20BCLR%201%20(CA)&autocompletePos=1 Hoogbruin v BC (Attorney  General)]'' (1985), 70 BCLR 1 (CA), individuals have a constitutional right to use  absentee ballots. The procedure for absentee balloting is outlined in section 105 of the ''Election Act''. Section 27 requires that general voting day for an election is the 28th day after the date on which the election is called. If that day is a holiday, the election will be on the next day that is not a holiday. On election day itself, polls are open from 8:00 a.m. to 8:00 p.m.
+WCAT may reconsider a final decision for very limited reasons after its powers were considered by both the BCCA and [https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%20Health%20Authority%20v%20Workers%20Compensation%20Appeal%20Tribunal%2C%202016%20SCC%2025&autocompletePos=1''Fraser Health Authority''], supra.
-If a voter does not understand English, subsection 269(3) states that a sworn interpreter may be used to translate the required oath to the voter. Under subsection 269(4), before acting as a translator under subsection (3), an individual must make a solemn declaration that the person will be able to make the translation and will do so to the best of their abilities.
+Under the WCA, a WCAT panel may change the outcome of a WCAT decision if there is new evidence. In addition, WCAT may still reconsider a WCAT decision under common law grounds if there is procedural unfairness or a true '''jurisdictional error.''' Note that a “true jurisdictional error” is an argument that should be used with caution, as the SCC has ceased
+recognizing jurisdictional questions as a separate category of questions separate from any other type of question on
+judicial review. See Canada [http://https://www.canlii.org/en/ca/scc/doc/2019/2019scc65/2019scc65.html (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65],paras 65 - 68 On these grounds, WCAT may rehear all or part of the appeal and come to a different conclusion. However, WCAT '''cannot''' change the outcome of a WCAT decision because it is incorrect, unreasonable, or patently unreasonable. In this respect, the WCAT is final, reviewable only by a court on judicial review (the time limit to apply for JR is 60 days, under the ''Administrative Tribunals Act'').
-Section 109 deals with special circumstances whereby voters with physical disabilities or difficulties in reading or writing are able to get assistance in marking their ballots.
+Information regarding reconsideration of WCAT decisions is available on the Post-Decision Information Guide on the WCAT website. There is '''no time limit''' on applying for reconsideration. To apply for reconsideration, a worker may fill out the Application for Reconsideration form and send it to the Tribunal Counsel Office. A worker can also apply for reconsideration by writing a letter to the Tribunal Counsel Office explaining how they meet the grounds for reconsideration.
-Employees are entitled by section 74 to four '''consecutive hours''' off during poll hours to attend a polling station, without loss of wages. However, the employer is entitled to choose which four hours are most convenient.
+WCAT makes a '''jurisdictional error''' if it:
+*Decided on something it had no power to decide (Example: if WCAT tried to make a binding decision on a residential tenancy issue when it only has authority to make decisions on workers compensation issues).
+*Failed to decide on something it was supposed to decide (Example: a worker properly appealed a decision and WCAT refused or failed to make a decision).
+*Was procedurally unfair (Example: WCAT was unfair in its decision making process, such as refusing to allow a worker to make submissions for an appeal).
-Upon arrival at the polling station, the voter must sign his or her name in a voting book (s 274), and confirm present address. Refusing to comply with this demand will disqualify the voter. Upon receiving a ballot, the voter proceeds to a screened compartment, marks the ballot and  returns the ballot to the Returning Officer, who, in full view of the voter, must place the ballot in the ballot box. The voting must be by a  secret ballot as per section 90. Each individual present at a voting place, including people such as voters and ballot counters, must not interfere with an individual marking a ballot, attempt to discover how an individual voted, or communicate information regarding how another  person voted or marked their ballot. The voter is then required to leave the premises.
+Section 310(3) of the WCA [Former Act, s. 256(3)] allows for a party to a completed appeal to apply for reconsideration of a decision based on new '''evidence''' which:
+*is substantial and material to the decision, and
+*did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.
-=== 4. Complaints about Elections BC ===
+If you apply for reconsideration based on new evidence, '''you must explain''':
-If you have a complaint about contraventions of the ''Election Act'', RSBC 1996, c 106, ''Local Elections Campaign Financing Act'', SBC 2014, c 18, or the ''Recall and Initiative Act'', RCBC 1996, c 398, you may make a complaint in writing by:
+*why the new evidence is substantial (has weight and supports a different conclusion);
+*how it is material (is relevant to the decision);
+*whether or not the evidence previously existed; and
+*if it did exist previously, why you did not discover (and submit) it at the time of the original hearing.
-Mail:
+A claimant can only apply once for reconsideration on each ground, so it is important that they are ready. This can be done at the same time or separate times for each ground. If applying for reconsideration of evidence, include the new evidence in the application. They will not be able to re-apply multiple times for any new evidence that might become available in the future.
-PO Box 9275 Stn Prov Govt
-Victoria BC, V8W 9J6
-or
+The first stage of reconsideration results in a formal written decision, issued by a WCAT panel, determining whether there are grounds for reconsideration. If the panel concludes that there are no grounds for reconsideration, WCAT will take no further action on the matter. If a panel decides that there are grounds for reconsideration, the original decision will then be found void (in whole or in part) and the application will proceed to the second stage at which a WCAT panel will hear the appeal once again. The WCAT will decide whether the second stage will be conducted by oral hearing or written submission.
-Email: investigations@elections.bc.ca
+WCAT has the authority to reconsider both WCAT and the former Appeal Division decisions. WCAT does not, however, have the authority to reconsider decisions by the former Review Board or the current Review Division. Objections to those decisions will be treated as appeals or applications for extensions of time to appeal. Additionally, WCAT cannot reconsider its own decisions for unreasonableness, patent unreasonableness, or error (Fraser Health, supra).
-Please see the Elections BC website here for information to include in your complaint: [https://elections.bc.ca/resources/investigations/how-to-make-a-complaint/ https://elections.bc.ca/resources/investigations/how-to-make-a-complaint/].
+In view of the finality of these provisions, especially where a decision has not been appealed, any worker who is not completely satisfied with a decision should request a review by the Review Division and if allowed, an appeal to the WCAT. This will preserve a residual right to present new evidence in the future, even if the appeal is unsuccessful.
-== C. Federal Elections ==
+WCAT decisions are accessible on the website under “prepare your case” which is listed under “appeal a decision”. To view previous WCAT decisions made on applications for reconsideration, you can select “[https://www.wcat.bc.ca/home/search-past-decisions/ Search past appeal decisions]” under “review decisions for appeals that are similar”.
-The rules and regulations governing federal elections are set out in the ''Canada Elections Act'', RSC 2000, c 9, and its subsequent  amendments. Many of these rules and regulations are similar to those applicable to BC provincial elections discussed above. A brief survey of  the federal Act is included below.
+== C. Judicial Review (JR) ==
-Canadian citizens who are 18 years of age or older on election day are generally eligible to vote in federal elections (s 3).
+A party may apply for judicial review at the same time that they apply for a reconsideration of a decision from WCAT.  A party must apply for judicial review of a WCAT decision by the British Columbia Supreme Court '''within 60 days''' of the date on which a decision is issued. Under certain circumstances, the court may extend the time for applying.  Due to clear language in the Administrative Tribunal Act, Judicial Review of WCAT decisions are held to the standard of patent unreasonableness on most questions (constitutional issues and questions of so-called true jurisdiction are exceptions).  This is the highest level of judicial deference and limits the court's ability to interfere unless the decision was “openly, evidently, clearly wrong” (''[http://canliiconnects.org/en/summaries/41327 Canada (Director of Investigation and Research) v. Southam Inc].'', [1997] 1 S.C.R. 748; ''Fraser Health, supra'').  '''Possible judicial review cases should be referred to lawyers as it is very difficult to file and conduct a judicial review without a lawyer’s assistance.''' See '''Chapter 5: Public Complaints Procedures''' for more information about judicial review.
-While federal residency requirements do exist, they are more relaxed than those applicable to BC provincial elections. A person may vote only  once, in the area in which they are “ordinarily resident” (s 8(1)). This is defined in much the same way as “resident” is defined in section 32 of BC’s ''Election Act''. A person who moves between the enumerator’s visit and the day of the election could be forced to vote in the former riding if ordinarily resident there when the enumeration occurred.
-All voters must present one piece of government-issued ID with a photograph and residential address before being allowed to vote (s 143(2)(a)). If a voter cannot provide the required photo ID, they may still be allowed to vote if they do one of two things (s 143(2)(b) and s 143(3)):
+Note that if Judicial Review and reconsideration are both possible, it is advisable for the worker to file their paperwork for Judicial Review within the 60-day time limit and then apply for reconsideration. This ensures that they will still be able to pursue Judicial Review if their reconsideration is denied.
-#provides two pieces of acceptable identification to establish the voter's identity, at least one of which establishes the voter’s residence (a list of “acceptable identification” is to be published by the Chief Electoral Officer); or
-#provides two pieces of identification that establishes the voter's name, and then establishes their residence by swearing an oath in  writing that attests to where they live. The voter must also be accompanied by an individual who is '''registered to vote in the same polling division''', has '''proper identification''', and vouches for the person without ID under oath and in the prescribed form. An individual can only vouch for one person at an election, and an individual who has been vouched for cannot vouch for someone else.
-These requirements pose significant challenges to low-income individuals who may have no form of official identification. Further difficulties are created by the rule that an individual may only vouch for one other individual and the requirement that the voucher lives and is on the elector’s list in the same polling station as the intended vouchee.
+'''Possible Judicial Review cases should be referred to lawyers, as it is very difficult to file and conduct a judicial review without a lawyer’s assistance'''. See '''Chapter 5: Public Complaints Procedures''' for more information about judicial review.
-The provisions relating to vouching, as described above, were brought into force by the ''Fair Elections Act'' in December 2014.  Under the new provisions, voters who have identification but cannot prove residence will be allowed to sign an oath attesting to where they live, which must then be corroborated by the oath of another voter.  However, this leaves voters who have no identification whatsoever with little recourse.  This controversial measure could significantly inhibit the ability of low-income citizens and students to vote.
+:NOTE: According to [https://www.canlii.org/en/bc/bcca/doc/2017/2017bcca403/2017bcca403.html?autocompleteStr=Denton%20v%20British%20Columbia%20(Workers%E2%80%99%20Compensation%20Appeal%20Tribunal)%2C%202017%20BCCA%2040&autocompletePos=1 ''Denton v British Columbia (Workers’ Compensation Appeal Tribunal)''], 2017 BCCA 40, where an appeal raises constitutional issues, those issues must be raised prior to the JR stage at the British Columbia Supreme Court. However, as only the Review Division has the authority to decide constitutional issues while WCAT does not, these issues must be raised during the initial review stage.
-The constitutionality of these requirements was challenged in the British Columbia Supreme Court and the BC Court of Appeal in ''[https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca30/2014bcca30.html?autocompleteStr=Henry%20v%20Canada%20(Attorney%20General)%2C%202014%20BCCA%2030&autocompletePos=1 Henry v Canada (Attorney General)]'', 2014 BCCA 30. In that case, the court found that the legislation was inconsistent with the electoral rights guaranteed in section 3 of the ''Charter'', but constituted a reasonable limit prescribed by law and was demonstrably justifiable in a free and democratic society under section 1 of the ''Charter''. In Ontario, the Council of Canadians and the Canadian Federation of Students have challenged this legislation in the Ontario Superior Court on the grounds that it violates section 3 of the ''Charter''.
+== D. Access to Files ==
-Many other provisions of the ''Canada Elections Act'', such as an employee being entitled to receive time off work to cast a ballot,  provisions for people with disabilities, and balloting procedures are very similar to BC provincial regulations and thus are not repeated here. Further inquiries and/or complaints can be sent to Stéphane Perrault, the current Chief Electoral Officer, at:
+Under the ''Freedom of Information and Protection of Privacy Act'', RSBC 1996, c 165 (FIPPA), all workers have the right to receive a copy of their file. Employers have the right to obtain a copy of the Board’s file if an appeal is pending or if a decision is made. The Act, however, limits an employer’s ability to use this information in non-employment related issues. An employer, for example, may not use the information contained in the worker’s file for disciplinary purposes.
-'''Elections Canada'''
+A worker’s WCB claim file that is disclosed for purposes of an appeal or a Freedom of Information request should contain all of the information pertaining to the Board’s decision, as well as copies of any decisions regarding the claim.
-{{ResourcesLSLAP
+Prior to May 2009, a file was divided into various sections such as Claims, Medical, Accounts, and Memo. Usually, the papers were filed in chronological order. Files are organized differently under the CMS data management system. Now, the preferred method of disclosure is by way of an encrypted .pdf file on a CD.  The first disclosure will be a complete copy of the file, not just an update.
-| address = 350 Victoria Street <br /> Gatineau, Quebec K1A OM6
-| phone = 1-800-463-6868
-| online = [http://www.elections.ca Website]
-}}
-Please see the following link for more information on making complaints about federal elections: [https://www.elections.ca/content.aspx?section=vot&dir=faq&document=faqgen&lang=e#gen3 https://www.elections.ca/content.aspx?section=vot&dir=faq&document=faqgen&lang=e#gen3].
+Overall, the adoption of electronic (E-file) rather than paper files has reduced administrative delays due to files being in use by other departments at the WCB or WCAT, but it has also decreased the detailed information explaining how decisions were reached, as handwritten notes and other documents are sometimes omitted. A request for disclosure under the FIPPA usually results in a more thorough search for such records and is occasionally advisable in cases where all information is needed. At times, the Board may not disclose all of the relevant evidence in its possession. Some of the missing information may be helpful for appeals, such as the actual observations of the Board’s staff during a functional evaluation, rather than just a final report.
-'''Note:''' Major changes to the ''Canada Election Act'' in June 2014 included provisions intended to increase penalties for offences, reduce voter fraud, and empower political parties to drive voter turnout. Specific changes include removing vouching in favour of an oath system where a voter has identification but cannot prove current residence; moving investigations from Elections Canada to the Director of Public Prosecutions; limiting the powers of Elections Canada; increasing donation limits; adding constraints on robocalls; and some changes to third-party advertising.
-The  Supreme Court of Canada struck down previous prohibitions preventing inmates from voting in ''[https://www.canlii.org/en/ca/scc/doc/2002/2002scc68/2002scc68.html Sauvé v Canada (Chief Electoral Officer)]'', 2002 SCC 68.  A key consideration in this decision was that, by denying the vote to all prisoners, the ''Act'' failed to balance the right to vote against the seriousness of the conduct of prisoners.
+{{LSLAP Manual Navbox|type=chapters1-7}}
-== D. Municipal Elections ==
-Municipal election procedures are outlined in the ''Local Government Act'', RSBC 1996, c 323, beginning at section 33. Please note, however, that elections in the City of Vancouver are governed by a separate provincial act, the ''Vancouver Charter'', SBC 1953, c 55.
-To be eligible to vote, a person must normally be a Canadian citizen and 18 years of age or older on the day the election is held. A person thus qualified must be a Canadian citizen and a resident of BC for six months immediately before election day. Furthermore, to be qualified,  the person must have been a resident of the jurisdiction (as per s 64) for at least 30 days immediately before election day.
-A person who qualifies as outlined above with the exception that they do not reside in the municipality may still vote in an election if they are the owner or tenant of property in that municipality (s 66). The general residency rules are similar to those outlined in the ''BC Election Act''.
-Applications to register should be made to the clerk of the municipality.
-Voters who are not yet registered on election day may apply to have their name added to the list on election day in a manner similar to that used in provincial elections (see sections 72-73).
-A person who is unable to produce identification can be registered as a voter. In order to do so, the individual must complete an application for registration and be accompanied by someone who is a registered voter in the applicant’s electoral district, an adult family member, or someone who has the authority to make personal care decisions in respect of the applicant. The applicant and the voucher must both make a solemn declaration, in writing, as to the applicant's identity and place of residence. A person can only vouch for one person, and an individual who has been vouched for cannot vouch for another person.
-'''NOTE:''' A literal interpretation of both the ''Canada Elections Act'' RSC 2000, c 9, and the ''BC Election Act'', RSBC 1996, c 106,  suggests that it is practically impossible for a homeless person to vote. However, the provincial electoral officer facilitates voting by homeless people through an administrative policy of allowing a flexible definition of “residence”.
-{{LSLAP Manual Navbox|type = chapters1-7}}