My Various Appeals to the WSIB Appeals Branch
I decided to break the various appeals I had with the WSIB appeals branch into separate pagesto allow me the opportunity to discuss each appeal.
My recent appeal regarding injured workers being compensated for the many over the counter medications that we have to pay for as a result of our work injuries, has not been listed above yet, but I will add it soon.
Like in most other jurisdictions in Canada, Ontario’s workers compensation board, the WSIB has an appeal branch where injured workers can appeal decisions of the adjudication level, which is the initial decision of the board.
This may not be the case in every jurisdiction.
The purpose of an appeal is to correct a wrong decision. There are many decisions reversed at different stages of the appeal process. While many may disagree, I find the higher up the appeal tree you go, the much harder the fight you have, regardless of the rightness of your case!
So, somehting that a first level decision maker would recosider, a higher decision maker may not.
After the board’s appeal branch has rendered a decision, the injured worker, if they disagree with the decision, can ask the decision maker to reconsider their decision. This step is often recommended. This is because if the facts or law was blatantly missed, you then may be able to convince the decision maker, they made an error. This will save you a whole lot of time. Appeals even in the lower levels can go a very long time. This is because the boards believe they are working fast regardless of your urgent needs and right now the courts agree with them.
So, after you either got a reconsideration decision or not and you do not agree with the decision you then are forced to appeal the first decision to the appeals branch.
The difference between when a party seeks a decision and when a party seeks an appeal of a decision, is that in an appeal the party must establish the decision maker got it wrong and how they got it wrong.
This is NOT by saying they are wrong!
You must prove that they had ignored or misinterpreted a law/policy; they misinterpreted certain facts.
As the Supreme Court stated in Vavilov, the decision maker’s decision is unreasonable when a decision is does not make sense after reviewing the facts, evidence, and law.
In many WSIB decisions I have had,
I have found the decision maker just says NO
or it does meet the requirements and that is it.
An ideal decision is one that lists the law and policy then references the facts with reference to evidence. This way it works effectively to convince the reader of their decision that it is correct according to the information before them. More detailed decisions are something you will start to see more frequently as decisions are reviewed by the courts.
So you can see the appeal process, atleast in Ontario, I have created a chart.
Please note that this is a very basic diagram and there are many more detailed steps to follow.
Also important is that at each step there are timelimits, but these time limist are NOT absolute.
I will do a more detailed diagram for each Province/Territory.
That will be for the workers compensation appeal process and the court process.
What will be interesting to see, when it is done, is that some Provinces/Territories allow an appeal of their Tribunal decisions to their Provincial/Territorial Courts of Appeal, under their law.
This while others, like Ontario, allow nothing!
For example, in Ontario, which is the home province of my claim and appeals,
the law (s. 123(4) of the WSIA) prevents appeals, and judicial review of their decisions.
However, The Supreme Court in their recent decision of Canada v. Vavilov reaffirmed the Court’s position
that a Provincial legislature cannot oust the jurisdiction of the Courts under s. 96 of the Constitution.
Therefore, Judicial review of the Tribunal decisions in Ontario and across Canada is allowed.
What is unclear across Canada is whether a person can sue a workers’ compensation board and/or tribunal for bad faith actions. Bad faith being an intentional act of deception and is the main element of abuse of public office.
Presently, In Ontario an individual cannot sue the WSIB or the WSIAT, but a group can.
However, in Alberta and New Brunswick an individual can sue their workers compensation boards.
So, as you hopefully realize, the law and the actions of our courts, across Canada, are inconsistent on this subject.
This was one of my main arguments for my public importance of my leave application to the Supreme Court of Canada.
Providing wide and specific comparative information about WCBs/WSIB/WorkSafe is part of the intent of my website.
To provide important information to injured workers
by providing them with comparative information from across Canada and eventually all Countries.
This is so we ALL know where we stand and what to demand!