2002 Legislative Session: 3rd Session, 37th Parliament
THIRD READING

The following electronic version is for informational purposes only.
The printed version remains the official version.

Certified correct as passed Third Reading on the 29th day of October, 2002
Ian D. Izard, Law Clerk

HONOURABLE GRAHAM BRUCE
MINISTER OF SKILLS
DEVELOPMENT AND LABOUR

BILL 63 -- 2002

WORKERS COMPENSATION AMENDMENT ACT (No. 2), 2002

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia enacts as follows:

Part 1 -- Review and Appeal Amendments

1 Section 1 of the Workers Compensation Act, R.S.B.C. 1996, c. 492, is amended

(a) by repealing the definition of "review board", and

(b) by adding the following definitions:

"appeal tribunal" means the Workers' Compensation Appeal Tribunal established under Part 4;

"chief review officer" means an officer of the Board who is appointed under section 96.2;

"reconsider" means to make a new decision in a matter previously decided where the new decision confirms, varies or cancels the previous decision or order;

"review officer" means an officer of the Board who is appointed under section 96.2; .

2 Section 11 is repealed.

3 Section 24 is amended

(a) in subsection (1) by striking out "This section" and substituting "Despite section 96 (1), this section", and

(b) in subsection (9) by striking out "review" in both places and substituting "reconsideration".

4 Section 37 is amended

(a) by repealing subsection (2) and substituting the following:

(2) The Board may do one or more of the following:

(a) create new classes in addition to those referred to in subsection (1);

(b) divide classes into subclasses and divide subclasses into further subclasses;

(c) consolidate or rearrange any existing classes and subclasses;

(d) assign an employer, independent operator or industry to one or more classes or subclasses;

(e) withdraw from a class

(i) an employer, independent operator or industry,

(ii) a part of the class, or

(iii) a subclass or part of a subclass,

and transfer it to another class or subclass or form it into a separate class or subclass;

(f) withdraw from a subclass

(i) an employer, independent operator or industry,

(ii) a part of the subclass, or

(iii) another subclass or part of another subclass,

and transfer it to another class or subclass or form it into a separate class or subclass. , and

(b) in subsection (3) by adding "and subclasses" after "classes".

5 Section 55 is amended by repealing subsection (3.3) and substituting the following:

(3.3) Despite section 96 (1), if, since July 1, 1974, the Board considered an application under the equivalent of this section in respect of death or disablement from occupational disease, the Board may reconsider that application, but the Board must apply subsection (3.2) of this section in that reconsideration.

6 Sections 58 (1) and (2), 59 to 62, 63 (2) to (4) and 64 to 66 are repealed.

7 Sections 58 (3) to (5) and 63 (1) are repealed.

8 Section 79 is repealed.

9 Section 81, as re-enacted by section 27 of the Workers Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(a) in subsection (1) by adding "and" at the end of paragraph (a), by striking out "and" at the end of paragraph (b) and by repealing paragraph (c), and

(b) by repealing subsection (3) and substituting the following:

(3) Each director, other than the chair and president, holds office for a term of up to 3 years, as set by the Lieutenant Governor in Council.

10 Section 82, as re-enacted by section 27 of the Workers Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(a) by repealing subsection (2) (a) and substituting the following:

(a) subject to the Act, selecting the president and determining the president's functions; , and

(b) in subsection (3) (c) by striking out ", the chief appeal commissioner".

11 Section 84.1 (4) (c), as enacted by section 30 of the Workers Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, is amended by striking out "the appeal commissioners and".

12 Sections 85, 85.1 and 85.2 are repealed.

13 Section 86 (6) and (7) is repealed.

14 Section 87 (1) and (2) is amended by striking out ", including the appeal division,".

15 Section 88 (2) is amended by striking out ", and the review board has,".

16 Sections 89 to 93 are repealed.

17 Section 94 (2) (b) and (3) (b) is amended by striking out ", review board or any other tribunal established by or under this Act" and substituting "and the appeal tribunal".

18 Section 95 (1.1) is amended

(a) in paragraph (c) by adding "tribunal," after "a court,", and

(b) in paragraph (d) by striking out "this Part or Part 3." and substituting "this Part, Part 3 or Part 4."

19 Section 96, as amended by section 37 of the Workers Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(a) in subsection (1) by striking out "The Board" and substituting "Subject to sections 239 and 240, the Board" and by striking out "an action must not be maintained or brought against a director, officer, appeal commissioner or employee of the Board in respect of an act, omission or decision done or made in the belief that it was within the jurisdiction of the Board;" and substituting "an action may not be maintained or brought against the Board or a director, an officer, or an employee of the Board in respect of any act, omission or decision that was within the jurisdiction of the Board or that the Board, director, officer or employee believed was within the jurisdiction of the Board;", and

(b) by repealing subsections (2) to (8) and substituting the following:

(2) Despite subsection (1), at any time, on its own initiative, or on application, the Board may reopen a matter that has been previously decided by the Board or an officer or employee of the Board under this Part if, since the decision was made in that matter,

(a) there has been a significant change in a worker's medical condition that the Board has previously decided was compensable, or

(b) there has been a recurrence of a worker's injury.

(3) If the Board determines that the circumstances in subsection (2) justify a change in a previous decision respecting compensation or rehabilitation, the Board may make a new decision that varies the previous decision or order.

(4) Despite subsection (1), the Board may, on its own initiative, reconsider a decision or order that the Board or an officer or employee of the Board has made under this Part.

(5) Despite subsection (4), the Board may not reconsider a decision or order if

(a) more than 75 days have elapsed since that decision or order was made,

(b) a review has been requested in respect of that decision or order under section 96.2, or

(c) an appeal has been filed in respect of that decision or order under section 240.

(6) Despite subsection (1), the Board may review a decision or order made by the Board or by an officer or employee of the Board under this Part but only as specifically provided in sections 96.2 to 96.5.

(7) Despite subsection (1), the Board may at any time set aside any decision or order made by it or by an officer or employee of the Board under this Part if that decision or order resulted from fraud or misrepresentation of the facts or circumstances upon which the decision or order was based.

(8) The Board may establish practices and procedures for carrying out its responsibilities under the Act, including specifying time periods within which certain steps must be taken and the consequences for failing to comply with those time periods.

(9) In circumstances it considers appropriate, the Board may recommend the use of alternate dispute resolution processes to assist in the resolution of matters under the Act.

20 Section 96.1 is repealed.

21 The following sections are added:

Request for reviews

96.2 (1) Subject to subsection (2), a person referred to in section 96.3 may request a review officer to review the following in a specific case:

(a) a Board decision respecting a compensation or rehabilitation matter under Part 1;

(b) a Board decision under Part 1 respecting an assessment or classification matter, a monetary penalty or a payment under section 47 (2), 54 (8) or 73 (1) by an employer to the Board of compensation paid to a worker;

(c) a Board order, a refusal to make a Board order, a variation of a Board order or a cancellation of a Board order respecting an occupational health or safety matter under Part 3.

(2) No review may be requested under subsection (1) respecting the following:

(a) an assessment under section 223 (1) (a);

(b) a determination, an order, a refusal to make an order or a cancellation of an order under section 153;

(c) an assignment of an employer or a subclass to a class or a subclass, except the assignment of an employer to a class or a subclass that

(i) has employers as members, and

(ii) does not have subclasses as members;

(d) a withdrawal of an employer or a subclass from a class or subclass, except a withdrawal of an employer from a class or subclass that

(i) has employers as members, and

(ii) does not have subclasses as members;

(e) the allocation of income, compensation payments, outlays, expenses, assets, liabilities, surpluses or deficits to or from the account of a class or subclass or to or from a reserve of the accident fund, except an allocation as it relates to a specific employer or an independent operator respecting

(i) the account of a class or subclass described in section 10 (8), or

(ii) the reserve described in section 39 (1) (b), (d) or (e);

(f) the determination of an assessment rate for a class or subclass, except the modification to the assessment rate determined for an employer on the basis of the employer's own experience;

(g) a decision to reopen or not to reopen a matter on an application under section 96 (2).

(3) A request for a review must be filed within 90 days after the Board's decision or order was made.

(4) On application, and where the chief review officer is satisfied that

(a) special circumstances existed which precluded the filing of a request for review within the time period required in subsection (3), and

(b) an injustice would otherwise result,

the chief review officer may extend the time to file a request for review even if the time to file has expired.

(5) Unless, on application, the chief review officer orders otherwise, the filing of a request for a review under subsection (3) does not operate as a stay or suspend the operation of the decision or order under review.

(6) As soon as practicable after a request for a review is filed, the Board must provide the parties to the review with a copy of its records respecting the matter under review.

(7) Subject to subsection (8), for the purposes of a specific review, if the employer has ceased to be an employer within the meaning of Part 1, the chief review officer may deem an employers' adviser within the meaning of section 94 or an organized group of employers to be the employer.

(8) An organized group of employers may be recognized by the chief review officer for the purposes of subsection (7) only if the organized group includes among its members employers in the subclass of industry to which the employer who has ceased to be an employer belonged.

(9) The Board must appoint a chief review officer and one or more review officers to conduct reviews under this section.

(10) The Labour Relations Code does not apply to a chief review officer or a review officer.

96.3 (1) Any of the following persons who is directly affected by a decision referred to in section 96.2 (1) (a) may request a review of that decision:

(a) a worker;

(b) a deceased worker's dependant;

(c) an employer.

(2) An employer or an independent operator who is directly affected by a decision referred to in section 96.2 (1) (b) may request a review of that decision.

(3) Any of the following persons who is directly affected by a decision or order referred to in section 96.2 (1) (c) may request a review of that decision or order:

(a) a worker;

(b) an employer within the meaning of Part 3;

(c) an owner as defined in section 106;

(d) a supplier as defined in section 106;

(e) a union as defined in section 106;

(f) a member of a deceased worker's family.

96.4 (1) This section applies to a review requested under section 96.2.

(2) Subject to any Board practices and procedures for the conduct of a review, a review officer may conduct a review as the officer considers appropriate to the nature and circumstances of the decision or order being reviewed.

(3) If a party to the review does not make a submission within the time required by any Board practices and procedures for the conduct of a review, the review officer may

(a) complete the review and make a decision on the basis of the information before him or her, or

(b) determine that the request for review is abandoned.

(4) A review officer may require an employer who is a party to a review respecting a matter referred to in section 96.2 (1) (c) to post a notice in a specified form and manner to bring the review to the attention of the employees of the employer.

(5) On application or on the chief review officer's own initiative, the chief review officer may suspend a review in a specific case in order to allow a review officer to deal with related matters at the same time.

(6) After taking into account any applicable period of suspension under subsection (5), the review officer must make a decision on a review

(a) within 150 days after the Board receives the request for review, or

(b) if a policy of the board of directors establishes a shorter time period than that specified in paragraph (a), within that shorter time period.

(7) The chief review officer may extend the applicable time period in subsection (6) (a) or (b) if the complexity of the proceedings in a review or the matter under review makes the time period impractical.

(8) The review officer may make a decision

(a) confirming, varying or cancelling the decision or order under review, or

(b) referring the decision or order under review back to the Board, with or without directions.

(9) Subject to sections 96.5 and 239, a decision by the review officer under subsection (8) is final and the Board must comply with that decision.

96.5 (1) The chief review officer may direct a review officer to reconsider a decision under section 96.4 (8) in either of the following circumstances:

(a) on the chief review officer's own initiative;

(b) on application from a party to a completed review of a decision that may not be appealed to the appeal tribunal, if the chief review officer is satisfied that new evidence has become available or been discovered that

(i) is substantial and material to the decision, and

(ii) did not exist at the time of the review or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

(2) Each party to a completed review may apply for reconsideration of a decision under subsection (1) (b) on one occasion only.

(3) Despite subsection (1), a review officer must not reconsider a decision

(a) more than 23 days after the decision was made, if a direction to reconsider was given under subsection (1) (a), or

(b) if the decision has been appealed under section 239.

22 Section 99 is repealed and the following substituted:

99 (1) The Board may consider all questions of fact and law arising in a case, but the Board is not bound by legal precedent.

(2) The Board must make its decision based upon the merits and justice of the case, but in so doing the Board must apply a policy of the board of directors that is applicable in that case.

(3) If the Board is making a decision respecting the compensation or rehabilitation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the Board must resolve that issue in a manner that favours the worker.

23 Section 101 is repealed.

24 Section 106 is amended by repealing the definition of "appeal tribunal".

25 Section 113 is amended

(a) in subsection (1) by striking out "The Board" and substituting "Subject to sections 239 and 240, the Board",

(b) by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), but subject to subsection (2.1) and sections 189 (1) and 190 (4), the Board may at any time, on its own initiative, make a new decision or order varying or cancelling a previous decision or order of the Board or of any officer or employee of the Board respecting any matter that is within the jurisdiction of the Board under this Part.

(2.1) The Board may not make a decision or an order under subsection (2) if

(a) a review has been requested under section 96.2 in respect of the previous decision or order, or

(b) an appeal has been filed under section 240 in respect of the previous decision or order.

(2.2) Despite subsection (1), the Board may review a decision or order made by the Board or by an officer or employee of the Board under this Part but only as specifically provided in sections 96.2 to 96.5.

(2.3) Despite subsection (1), the Board may at any time set aside any decision or order made by it or by an officer or employee of the Board under this Part if that decision or order resulted from fraud or misrepresentation of the facts or circumstances upon which the decision or order was based. , and

(c) by repealing subsection (4) and substituting the following:

(4) An action may not be maintained or brought against the Board or a director, an officer or an employee of the Board in respect of any act, omission or decision

(a) that was within the jurisdiction of the Board under this Part, or

(b) that the Board, director, officer or employee believed was within the jurisdiction of the Board under this Part.

26 Section 156 is amended

(a) in subsection (1) by adding ", Part 4" after "this Part" wherever it appears,

(b) in subsection (2) by adding "or Part 4" after "this Part" in both places, and

(c) in subsection (5) by adding "or the appeal tribunal" after "the Board" wherever it appears.

27 Section 189 is amended

(a) in subsection (1) by striking out "If the board cancels an order," and substituting "If the board varies or cancels an order," and by striking out "of the cancellation", and

(b) in subsection (2) by striking out "cancellation".

28 Section 196 is repealed and the following substituted:

196 (1) The Board may, by order, impose an administrative penalty on an employer under this section if it considers that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

(2) An administrative penalty which is greater than $500 000 must not be imposed under this section.

(3) An administrative penalty must not be imposed under this section if an employer exercised due diligence to prevent the circumstances described in subsection (1).

(4) If an employer requests under section 96.2 a review of a decision under subsection (1), the employer must

(a) post a copy of the request for review at the workplace to which the administrative penalty relates,

(b) provide a copy of the request for review to the joint committee or worker health and safety representative, as applicable, and

(c) if the workers at the workplace to which the administrative penalty relates are represented by a union, provide a copy of the request for review to the union.

(5) An employer who has been ordered to pay an administrative penalty under this section must pay the amount of the penalty to the Board for deposit into the accident fund.

(6) If an administrative penalty under this section is reduced or cancelled by a Board decision, on a review under section 96.2 or on an appeal to the appeal tribunal under Part 4, the Board must

(a) refund the required amount to the employer out of the accident fund, and

(b) pay interest on that amount calculated in accordance with the policies of the board of directors.

(7) If an administrative penalty is imposed on an employer under this section, the employer must not be prosecuted under this Act in respect of the same facts and circumstances upon which the Board based the administrative penalty.

29 Section 197 is repealed.

30 Divisions 13 and 14 of Part 3 are repealed.

31 Section 221 is repealed and the following substituted:

221 (1) A document that must be served on or sent to a person under this Act may be

(a) personally served on the person,

(b) sent by mail to the person's last known address, or

(c) transmitted electronically, by facsimile transmission or otherwise, to the address or number requested by the person.

(2) If a document is sent by mail, the document is deemed to have been received on the 8th day after it was mailed.

(3) If a document is transmitted electronically, the document is deemed to have been received when the person transmitting the document receives an electronic acknowledgement of the transmission.

32 Section 224 (2) is amended

(a) by repealing paragraph (j) and substituting the following:

(j) prescribing any decisions or orders under this Act or the regulations that may be appealed to the appeal tribunal under Part 4, prescribing who may appeal those decisions or orders and prescribing classes of decisions for purposes of section 239 (2) (a); , and

(b) by adding the following paragraphs:

(k.1) respecting the awarding of costs by the appeal tribunal in an appeal under Part 4;

(k.2) prescribing qualifications of health professionals for purposes of section 249;

(k.3) prescribing the circumstances under which the appeal tribunal may order the Board to reimburse the expenses incurred by a party to an appeal under Part 4.

33 The following Part is added:

Part 4 -- Appeals

Division 1 -- Appeal Tribunal

231 In this Part:

"chair" means the chair of the appeal tribunal appointed under section 232 (2) (a);

"extraordinary member" means a member of the appeal tribunal appointed under section 232 (2) (c);

"members of the appeal tribunal" means the chair, vice chairs and extraordinary members appointed under section 232 (2) and temporary substitute members appointed under section 232 (10);

"presiding member" means the member of the appeal tribunal chairing a panel of the tribunal;

"vice chair" means a vice chair of the appeal tribunal appointed under section 232 (2) (b).

232 (1) The Workers' Compensation Appeal Tribunal is established.

(2) The appeal tribunal consists of the following members:

(a) the chair appointed by the Lieutenant Governor in Council;

(b) one or more vice chairs appointed by the chair, after consultation with the minister;

(c) any extraordinary members appointed by the chair, after consultation with the minister, with representation from individuals with experience in employers' interests and from individuals with experience in workers' interests.

(3) The chair holds office for a term of up to 5 years and may be reappointed for one or more successive terms of up to 5 years each.

(4) The vice chairs hold office in their first term for 2 years and may be reappointed for one or more successive terms of up to 4 years each.

(5) An extraordinary member holds office for the period of time required to discharge his or her duties as a member of a panel appointed by the chair under section 238 (5) (b) or (6) (b).

(6) Individuals are not eligible for appointment as vice chairs unless they have successfully completed a competency-based selection process established or approved by the chair.

(7) All members of the appeal tribunal must perform their duties and functions in a fair, impartial and expeditious manner.

(8) Before beginning their duties, members of the appeal tribunal must take an oath of office in the form and manner prescribed by the Lieutenant Governor in Council.

(9) The Labour Relations Code and the Public Service Labour Relations Act do not apply to members or officers of the appeal tribunal.

(10) Despite subsections (3) to (5), if a member of the appeal tribunal is absent or incapacitated,

(a) the Lieutenant Governor in Council, if the member is the chair, or

(b) the chair, if the member is a vice chair or extraordinary member,

may appoint a temporary substitute member to act during the absence or incapacity.

233 (1) A member of the appeal tribunal may resign at any time by giving written notice to the chair or, in the case of the chair, to the minister.

(2) A member of the appeal tribunal who resigns or whose appointment has expired may continue to exercise his or her powers in an appeal on which that member is sitting until a decision is made on that appeal.

234 (1) The chair is responsible for the general operation of the appeal tribunal.

(2) Without restricting subsection (1), the chair is responsible for the following:

(a) appointing vice chairs and extraordinary members in accordance with any procedures or requirements prescribed by the Lieutenant Governor in Council;

(b) establishing quality adjudication, performance and productivity standards for members of the appeal tribunal and regularly evaluating the members according to those standards;

(c) developing a 3 year strategic plan and an annual operations plan for the appeal tribunal;

(d) establishing any rules, forms, practices and procedures required for the efficient and cost effective conduct of appeals to the appeal tribunal, including

(i) establishing time periods within which steps must be taken,

(ii) requiring pre-hearing conferences, and

(iii) employing voluntary alternate dispute resolution processes;

(e) making accessible to the public any rules, forms, practices and procedures established under paragraph (d);

(f) establishing administrative practices and procedures for the effective operation of the appeal tribunal;

(g) providing for public access to decisions of the appeal tribunal in a manner that protects the privacy of the parties to the proceedings;

(h) for the purposes of section 249, establishing a list of health professionals;

(i) presiding over meetings of the appeal tribunal;

(j) establishing panels;

(k) ordering the consideration of related matters in one hearing before the appeal tribunal;

(l) establishing a code of conduct, including conflict of interest provisions, that governs the conduct of the members, officers, employees and contractors of the appeal tribunal;

(m) preparing the annual report of the appeal tribunal;

(n) appointing officers of the appeal tribunal;

(o) for the purpose of judicial proceedings, preparing a certificate attaching the record of the appeal tribunal in the matter of a particular appeal or decision of the tribunal, including any practices and procedures applied by the tribunal.

(3) The chair may exercise any power and perform any duty or function of the appeal tribunal or of a member of the appeal tribunal.

(4) Subject to section 251 (9), the chair may delegate in writing to another member of the appeal tribunal or to an officer of the appeal tribunal a power or duty of the chair and may impose limitations or conditions on the exercise of that power or performance of that duty.

(5) If the chair has delegated a power or duty of the chair and subsequently ceases to hold office, the delegation continues in effect

(a) so long as the delegate continues in office, or

(b) until the delegation is revoked by a new chair.

(6) The chair may designate another member of the appeal tribunal to act in the chair's place during the chair's temporary absence, and while acting in the chair's place the designated member has the power and authority of the chair.

(7) The chair must attend not fewer than 4 meetings of the board of directors each calendar year to exchange information on matters of common interest and importance to the workers' compensation system.

(8) On or before March 25 of each year, the chair must make a report to the minister respecting the appeal tribunal's operations for the preceding calendar year.

(9) The minister may require the annual report referred to in subsection (8) to address specified matters and to be in a specified form.

235 (1) Employees necessary to exercise the powers and perform the duties of the appeal tribunal may be appointed under the Public Service Act.

(2) The Pension (Public Service) Act and the Public Service Benefits Plan Act apply to the employees of the appeal tribunal.

(3) Despite the Public Service Act, the appeal tribunal may engage or retain consultants and contractors that the appeal tribunal considers necessary to exercise its powers and perform its duties, and may determine the functions and remuneration of those consultants and contractors.

236 (1) All members of the appeal tribunal must be compensated in accordance with the regulation made under subsection (2).

(2) For the purposes of subsection (1), the minister may make a regulation respecting the compensation of members of the appeal tribunal, including specifying different rates of compensation for different classes of members.

(3) All members of the appeal tribunal must be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred by them in performing their duties.

(4) The Pension (Public Service) Act and the Public Service Benefits Plan Act apply to the members of the appeal tribunal.

(5) Subject to subsection (4), the minister may establish the conditions of appointment of the members of the appeal tribunal.

237 (1) All money required for the administration and operation of the appeal tribunal must be paid by the government, but on request of the minister the Board must reimburse the government for all amounts so paid.

(2) On receipt of a request from the minister under subsection (1), the Board must pay the amount requested to the Minister of Finance out of the accident fund.

238 (1) All appeals to the appeal tribunal must be heard by panels appointed under this section.

(2) The chair must establish the panels of the appeal tribunal.

(3) The chair may

(a) terminate an appointment to a panel,

(b) fill a vacancy on a panel, and

(c) refer an appeal that is before one panel to another panel.

(4) Subject to subsections (5) and (6), panels must consist of the chair sitting alone or a vice chair sitting alone.

(5) If the chair determines that a matter under appeal requires consideration by a 3 member panel, the chair may appoint a panel with either of the following memberships:

(a) the chair or a vice chair, acting as presiding member, plus 2 additional vice chairs;

(b) the chair or a vice chair, acting as presiding member, plus one extraordinary member with experience in employers' interests and one extraordinary member with experience in workers' interests.

(6) If the chair determines that the matters in an appeal are of special interest or significance to the workers' compensation system as a whole, the chair may appoint a panel of up to 7 members with either of the following memberships:

(a) the chair or a vice chair, acting as presiding member, plus additional vice chairs;

(b) the chair or a vice chair, acting as presiding member, plus additional vice chairs and extraordinary members.

(7) If a panel is constituted under subsection (6) (b),

(a) there must be an equal number of extraordinary members appointed who have experience in employers' interests and who have experience in workers' interests, and

(b) the extraordinary members must not constitute a majority of the membership of the panel.

(8) A panel has the power and authority of the appeal tribunal in an appeal assigned to the panel under this section.

(9) If a panel consists of more than one member, the decision of the majority is the appeal tribunal's decision, but if there is no majority the decision of the presiding member is the appeal tribunal's decision.

(10) Despite subsections (6) and (7), if a member of a panel constituted under subsection (6) is unable to complete an appeal, the chair may direct the remaining members of the panel to complete the appeal and make the decision of the appeal tribunal

Division 2 -- Appeal Rights

239 (1) Subject to subsection (2), a final decision made by a review officer in a review under section 96.2, including a decision declining to conduct a review under that section, may be appealed to the appeal tribunal.

(2) The following decisions made by a review officer may not be appealed to the appeal tribunal:

(a) a decision in a prescribed class of decisions respecting the conduct of a review;

(b) a decision respecting matters referred to in section 16;

(c) a decision respecting the application under section 23 (1) of rating schedules compiled under section 23 (2) where the specified percentage of impairment has no range or has a range that does not exceed 5%;

(d) a decision respecting commutations under section 35;

(e) a decision respecting an order under Part 3, other than an order

(i) relied upon to impose an administrative penalty under section 196 (1),

(ii) imposing an administrative penalty under section 196 (1), or

(iii) made under section 195 to cancel or suspend a certificate.

240 (1) A determination, an order, a refusal to make an order or a cancellation of an order made under section 153 may be appealed to the appeal tribunal.

(2) A decision to reopen or not to reopen a matter on an application under section 96 (2) may be appealed to the appeal tribunal.

241 (1) For the purposes of section 239, any of the following persons who is directly affected by a decision of the review officer in respect of a matter referred to in section 96.2 (1) (a) may appeal that decision:

(a) a worker;

(b) a deceased worker's dependant;

(c) an employer.

(2) For the purposes of section 239, an employer or an independent operator who is directly affected by a decision of the review officer in respect of a matter referred to in section 96.2 (1) (b) may appeal that decision.

(3) For the purposes of section 239, any of the following persons who is directly affected by a decision of the review officer in respect of a matter referred to in section 96.2 (1) (c) may appeal that decision:

(a) a worker;

(b) an employer within the meaning of Part 3;

(c) an owner as defined in section 106;

(d) a supplier as defined in section 106;

(e) a union as defined in section 106;

(f) a member of a deceased worker's family.

(4) For the purposes of section 240 (1), any of the following persons who is directly affected by a decision or an order referred to in section 240 (1) may appeal that decision or order:

(a) a worker;

(b) an employer within the meaning of Part 3;

(c) a union as defined in section 106.

(5) For the purposes of section 240 (2), a worker or an employer who is directly affected by a decision referred to in section 240 (2) may appeal that decision.

242 (1) A person referred to in section 241 may appeal the decision or order to the appeal tribunal by filing a notice of appeal with the tribunal.

(2) A notice of appeal must

(a) be made in writing or in another form acceptable to the appeal tribunal,

(b) identify the decision or order that is being appealed,

(c) state why the decision or order is incorrect or why it should be changed, and

(d) state the outcome requested.

243 (1) A notice of appeal respecting a decision referred to in section 239 must be filed within 30 days after the decision being appealed was made.

(2) A notice of appeal respecting a decision referred to in section 240 must be filed within 90 days after the decision or order being appealed was made.

(3) On application, and where the chair is satisfied that

(a) special circumstances existed which precluded the filing of a notice of appeal within the time period required in subsection (1) or (2), and

(b) an injustice would otherwise result,

the chair may extend the time to file a notice of appeal even if the time to file has expired.

244 Unless the chair directs otherwise, the filing of a notice of appeal under section 242 does not operate as a stay or affect the operation of the decision or order under appeal.

Division 3 -- Appeal Procedure

245 (1) The Board must provide the appeal tribunal with copies of all current policies of the board of directors.

(2) As soon as practicable, the appeal tribunal must notify the Board of an appeal filed under this Part.

(3) As soon as practicable after being given notice under subsection (2), the Board must provide the appeal tribunal and the parties to the appeal with a copy of its records respecting the matter under appeal.

(4) On request of the appeal tribunal and as soon as practicable, the Board must advise the appeal tribunal of a policy of the board of directors that is applicable to the matter under appeal.

(5) As soon as practicable after receiving advice under subsection (4), the appeal tribunal must advise the parties to the appeal of a policy of the board of directors that the Board has advised the appeal tribunal is applicable to the matter under appeal.

246 (1) Subject to any rules, practices or procedures established by the chair, the appeal tribunal may conduct an appeal in the manner it considers necessary, including conducting hearings in writing or orally with the parties present in person or by means of teleconference or videoconference facilities.

(2) Without restricting subsection (1), the appeal tribunal may do one or more of the following:

(a) receive evidence or information on oath, by affidavit or otherwise, as it considers appropriate, whether or not the evidence is admissible in a court;

(b) receive new evidence;

(c) inquire into the matter under appeal and consider all information obtained;

(d) request the Board to investigate further into a matter relating to a specific appeal and report in writing to the appeal tribunal;

(e) require the parties to the appeal to attend a pre-hearing conference to discuss procedural and substantive issues relating to the conduct of the appeal;

(f) require the parties to the appeal to make a pre-hearing disclosure of their evidence, including requiring the pre-hearing examination of a party on oath or by affidavit;

(g) recommend to the parties to the appeal that an alternate dispute resolution process be used to assist in the resolution of a matter under appeal;

(h) require an employer who is a party to an appeal respecting a matter referred to in section 96.2 (1) (c) to post a notice in the specified form and manner bringing the appeal to the attention of the employees of the employer;

(i) request any person or representative group to participate in an appeal if the tribunal considers that this participation will assist the tribunal to fully consider the merits of the appeal.

(3) If, in an appeal, the appeal tribunal considers there to be a matter that should have been determined but that was not determined by the Board, the appeal tribunal may refer that matter back to the Board for determination and suspend the appeal proceedings until the Board provides the appeal tribunal with that determination.

(4) If the appeal tribunal refers a matter back to the Board for determination under subsection (3), the appeal tribunal must consider the Board's determination in the context of the appeal and no review of that determination may be requested under section 96.2.

(5) If, in an appeal, a party fails to comply with the procedures of the appeal tribunal including any time limits specified for taking any actions, the tribunal may, after giving notice to that party,

(a) continue with the proceedings and make a decision based upon the evidence before it, or

(b) determine that the appeal has been abandoned.

247 (1) On an appeal, the appeal tribunal has the same powers as the Supreme Court

(a) to compel the attendance of witnesses and examine them under oath, and

(b) to compel the production and inspection of books, papers, documents and things.

(2) On an appeal, the appeal tribunal may cause depositions of witnesses residing in or out of the Province to be taken before a person appointed by the appeal tribunal in a similar manner to that prescribed by the Rules of Court for the taking of like depositions in the Supreme Court before a commissioner.

(3) Despite subsections (1) and (2), an officer, an employee or a contractor of the Board may only be compelled to give evidence or produce books, papers, documents and things that

(a) relate to the issues in a specific appeal, and

(b) are necessary for the appeal tribunal to address those issues and to make a decision in the appeal.

(4) Despite subsections (1) and (2), a member of the board of directors or an officer, an employee or a contractor of the Board may not be compelled to give evidence or produce books, papers, documents and things respecting the development or adoption of the policies of the board of directors.

248 (1) Subject to subsections (2) and (3), for the purposes of a specific appeal, if the employer has ceased to be an employer within the meaning of Part 1, the appeal tribunal may deem an employers' adviser within the meaning of section 94 or an organized group of employers to be the employer.

(2) An organized group of employers may be recognized by the appeal tribunal for the purposes of subsection (1) only if the organized group includes among its members employers in the subclass of industry to which the employer who has ceased to be an employer belonged.

(3) If, for the purposes of the review under section 96.2 of a decision respecting a specific matter, an organized group of employers or an employers' adviser was deemed to be the employer, the group or employers' adviser, as the case may be, is deemed to be the employer for the purposes of appealing the review officer's decision in that matter and participating in the appeal.

249 (1) In this section, "health professional" means a medical practitioner, a person entitled to practise medicine under the laws of another jurisdiction or any other person with prescribed qualifications.

(2) The chair must establish a list of health professionals who may be retained to provide independent assistance or advice on the request of the appeal tribunal in an appeal.

(3) The list established by the chair under subsection (2) must not include any person who is employed by the Board.

(4) After taking into account any fee schedule established by the Board for services provided by health professionals, the chair may determine the terms and conditions, including remuneration and reimbursement of expenses, under which a health professional may be retained by the appeal tribunal under this section.

(5) Except with the written consent of the parties to the appeal, the appeal tribunal must not retain a health professional to provide independent assistance or advice in respect of a specific appeal if the health professional

(a) has previously examined the worker whose claim is the subject of the appeal,

(b) is treating or has previously treated the worker or a member of the worker's family,

(c) has been consulted in the treatment of the worker,

(d) has acted as a consultant to the employer,

(e) is a partner of or practises with a health professional described in this subsection, or

(f) is otherwise in circumstances that could result in a reasonable apprehension of bias.

(6) If the appeal tribunal determines that independent assistance or advice from a health professional would assist in reaching a decision on an appeal, the presiding member may retain a health professional from the list described in subsection (2) to provide such assistance or advice.

(7) When a health professional is retained under subsection (6), the presiding member must set the terms of reference for the advice, including requiring a written report, setting any time periods for providing the report and specifying any questions to be answered in the report.

(8) If the health professional retained under subsection (6) considers it necessary to examine a worker in order to provide the independent assistance or advice set out in the terms of reference under subsection (7), the health professional may require the worker to attend for an examination by giving the worker written notice.

(9) If the worker fails to present himself or herself for the examination required under subsection (8) or obstructs that examination without reasonable cause, the appeal tribunal may, after giving notice to the worker, do one or more of the following:

(a) direct the health professional to reschedule the examination of the worker and give the worker notice of the rescheduled examination;

(b) direct the health professional to provide a report without examining the worker;

(c) make a determination that the worker has abandoned the appeal.

(10) The appeal tribunal must give a copy of the health professional's written report to the parties to the appeal.

(11) The parties to an appeal may make submissions to the appeal tribunal in respect of the report provided to them under subsection (10).

(12) The appeal tribunal may suspend an appeal until a health professional's report to be provided under this section in respect of that appeal is received by the appeal tribunal.

(13) Subsection (5) does not prohibit the appeal tribunal in an appeal

(a) from requesting a health professional to provide it with medical evidence or to clarify or interpret medical evidence previously provided by the health professional, or

(b) from compensating the health professional for the services described in paragraph (a).

(14) Evidence or advice given under subsection (13) is not independent assistance or advice within the meaning of this section.

250 (1) The appeal tribunal may consider all questions of fact and law arising in an appeal, but is not bound by legal precedent.

(2) The appeal tribunal must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case.

(3) The appeal tribunal is bound by a decision of a panel appointed under section 238 (6) unless

(a) the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances addressed in the panel's decision, or

(b) subsequent to the panel's decision, a policy of the board of directors relied upon in the panel's decision was repealed, replaced or revised.

(4) If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.

251 (1) The appeal tribunal may refuse to apply a policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations.

(2) If, in an appeal, the appeal tribunal considers that a policy of the board of directors should not be applied, that issue must be referred to the chair and the appeal proceedings must be suspended until the chair makes a determination under subsection (4) or the board of directors makes a determination under subsection (6), as the case may be.

(3) As soon as practicable after an issue is referred under subsection (2), the chair must determine whether the policy should be applied.

(4) If the chair determines under subsection (3) that the policy should be applied, the chair must refer the matter back to the appeal tribunal and the tribunal is bound by that determination.

(5) If the chair determines under subsection (3) that the policy should not be applied, the chair must

(a) send a notice of this determination, including the chair's written reasons, to the board of directors, and

(b) suspend any other appeal proceedings that are pending before the appeal tribunal and that the chair considers to be affected by the same policy until the board of directors makes a determination under subsection (6).

(6) Within 90 days after receipt of a notice under subsection (5) (a), the board of directors must review the policy and determine whether the appeal tribunal may refuse to apply it under subsection (1).

(7) On a review under subsection (6), the board of directors must provide the following with an opportunity to make written submissions:

(a) the parties to the appeal referred to in subsection (2);

(b) the parties to any appeals that were pending before the appeal tribunal on the date the chair sent a notice under subsection (5) (a) and that were suspended under subsection (5) (b).

(8) After the board of directors makes a determination under subsection (6), the board of directors must refer the matter back to the appeal tribunal, and the appeal tribunal is bound by that determination.

(9) The chair must not make a general delegation of his or her authority under subsection (3), (4) or (5), but if the chair believes there may be a reasonable apprehension of bias the chair may delegate this authority to a vice chair or to a panel of the appeal tribunal for the purposes of a specific appeal.

252 (1) On application of the appellant or on the chair's own initiative, the chair may suspend appeal proceedings if a Board's decision respecting a matter that is related to the appeal is pending.

(2) Within 30 days after the Board's decision referred to in subsection (1) is made, the appellant may request the appeal tribunal to continue the appeal proceedings and, on receipt of that request, the appeal tribunal must continue the proceedings.

(3) If the appellant requests the appeal tribunal to continue the appeal proceedings before the Board's decision referred to in subsection (1) is made, the chair may

(a) direct the appeal tribunal to continue the proceedings, or

(b) continue the suspension until the Board's decision is made.

(4) On application, and where the chair is satisfied that

(a) special circumstances existed which precluded the making of a request within the time required in subsection (2), and

(b) an injustice would otherwise result,

the chair may extend the time to make a request under subsection (2) even if the time to make the request has expired.

253 (1) On an appeal, the appeal tribunal may confirm, vary or cancel the appealed decision or order.

(2) Despite subsection (1), on an appeal under section 240 (2), the appeal tribunal may make one of the following decisions:

(a) the matter that is the subject of the application under section 96 (2) must be reopened;

(b) the matter that is the subject of the application under section 96 (2) may not be reopened.

(3) The appeal tribunal's final decision on an appeal must be made in writing with reasons.

(4) Subject to any suspensions of the appeal proceedings permitted under this Part, the appeal tribunal must make its final decision on an appeal

(a) within 180 days after the appeal tribunal receives a copy of the records provided under section 245 (3) respecting the matter under appeal, or

(b) if a shorter time period is prescribed by the Lieutenant Governor in Council, within that shorter time period.

(5) The chair may extend the applicable time period under subsection (4) if

(a) the complexity of the proceedings in the appeal or of the matter under appeal makes the time period impractical, or

(b) the appellant requests a delay in the proceedings to submit new evidence or make additional submissions.

(6) If the appellant has requested a delay for a reason referred to in subsection (5) (b), the chair may extend the time for not more than 45 days.

(7) If the time is extended under subsection (6), the chair, on application, must extend the time for an additional period not exceeding that granted under subsection (6) to allow the other parties to the appeal to submit new evidence or to make additional submissions.

(8) The chair may extend the time under this section even if the applicable time period under subsection (4) has expired.

Division 4 -- General

254 The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact and law arising or required to be determined under this Part, including the following:

(a) all appeals from review officers' decisions as permitted under section 239;

(b) all appeals from Board decisions or orders as permitted under section 240;

(c) all matters that the appeal tribunal is requested to determine under section 257;

(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.

255 (1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.

(2) Proceedings by or before the chair or appeal tribunal under this Part must not

(a) be restrained by injunction, prohibition or other process or proceeding in any court, or

(b) be removed by certiorari or otherwise into any court.

(3) The Board must comply with a final decision of the appeal tribunal made in an appeal under this Part.

256 (1) This section applies to a decision in

(a) a completed appeal by the appeal tribunal under this Part or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002, and

(b) a completed appeal by the appeal division under a former enactment or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002.

(2) A party to a completed appeal may apply to the chair for reconsideration of the decision in that appeal if new evidence has become available or been discovered.

(3) On receipt of an application under subsection (2), the chair may refer the decision to the appeal tribunal for reconsideration if the chair is satisfied that the evidence referred to in the application

(a) is substantial and material to the decision, and

(b) 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) Each party to a completed appeal may apply for reconsideration of a decision under this section on one occasion only.

257 (1) Where an action is commenced based on

(a) a disability caused by occupational disease,

(b) a personal injury, or

(c) death,

the court or a party to the action may request the appeal tribunal to make a determination under subsection (2) and to certify that determination to the court.

(2) For the purposes of subsection (1), the appeal tribunal may determine any matter that is relevant to the action and within the Board's jurisdiction under this Act, including determining whether

(a) a person was, at the time the cause of action arose, a worker within the meaning of Part 1,

(b) the injury, disability or death of a worker arose out of, and in the course of, the worker's employment,

(c) an employer or the employer's servant or agent was, at the time the cause of action arose, employed by another employer, or

(d) an employer was, at the time the cause of action arose, engaged in an industry within the meaning of Part 1.

(3) This Part, except section 253 (4), applies to proceedings under this section as if the proceedings were an appeal under this Part.

258 (1) If, following a review under section 96.2, a review officer's decision requires payments to be made to a worker or a deceased worker's dependants, the Board must

(a) begin any periodic payments, and

(b) pay any lump sum due under section 17 (13).

(2) In the absence of fraud or misrepresentation, an amount paid under subsection (1) to a worker or a deceased worker's dependants is not recoverable.

(3) If a review officer has made a decision described under subsection (1), the Board must defer the payment of any compensation applicable to the time period before that decision

(a) for a period of 40 days following the review officer's decision, and

(b) if the review officer's decision is appealed under section 239, for a further period until the appeal tribunal has made a final decision or the appeal has been withdrawn, as the case may be.

(4) Subsection (3) applies despite section 19.1, 22 (1), 23 (1) or (3), 29 (1) or 30 (1).

(5) If the appeal tribunal's decision on an appeal requires the payment of compensation, all or part of which was deferred under subsection (3), interest must be paid on the deferred amount of that compensation as specified in subsection (6).

(6) Interest payable under subsection (5) must be calculated in accordance with the policies of the board of directors and begins

(a) 41 days after the review officer made his or her decision, or

(b) on an earlier day determined in accordance with the policies of the board of directors.

259 (1) The commencement of a review under section 96.2 or of an appeal under this Part respecting a matter described in section 96.2 (1) (b) does not relieve an employer from paying an amount in respect of a matter that is the subject of the review or appeal.

(2) If the decision on a review or an appeal referred to in subsection (1) requires the refund of an amount to an employer, interest calculated in accordance with the policies of the board of directors must be paid to the employer on that refunded amount.

260 (1) Members of the appeal tribunal and officers, employees and contractors of the appeal tribunal must not disclose any information obtained by them or of which they have been informed while performing their duties and functions under this Part, except as may be necessary to discharge their obligations under this Part.

(2) If information in a claim file or in any other material pertaining to the claim of an injured or a disabled worker is disclosed for purposes of this Part to a person other than the worker, that person must not disclose the information except as permitted in circumstances described in section 95 (1.1).

(3) Every person who violates subsection (1) or (2) commits an offence.

Part 2 -- Transitional Provisions

34 In this Part:

"amending Act" means this Act;

"appeal division" means the appeal division of the Board referred to in section 85 of the Act;

"appeal tribunal" means the Workers' Compensation Appeal Tribunal established under section 232 (1) of the Act, as enacted by the amending Act;

"repeal date" means the date section 7 of the amending Act comes into force;

"review board" means the Workers' Compensation Review Board referred to in section 89 of the Act;

"the Act" means the Workers Compensation Act;

"transition date" means the date section 232 (1) of the Act, as enacted by the amending Act, comes into force.

35 (1) Despite section 232 (2) and (3) of the Act, as enacted by the amending Act, after consultation with the first chair of the appeal tribunal, the minister must appoint the first vice chairs of the appeal tribunal.

(2) Section 232 (6) of the Act, as enacted by the amending Act, does not apply to an appointment made under subsection (1).

36 (1) All proceedings pending under sections 58 (3) to (5) and 63 (1) of the Act on the repeal date are to be continued and completed.

(2) The rights and obligations of the parties to a proceeding referred to in this section must be determined in accordance with the law as it was on the date

(a) the party requested an examination under section 58 (3) or (4) or a determination under section 63 (1), or

(b) the board decided that a worker must be examined under section 58 (5),

as the case may be.

(3) If, before the repeal date,

(a) a person has not exercised a right under section 58 (3) or (4) of the Act, and

(b) the time period within which that right must be exercised would not have expired but for the repeal of that right on the repeal date,

that person may exercise that right before the time period referred to in paragraph (b) has expired.

37 (1) If, before the transition date,

(a) a person has not exercised a right under section 201 of the Act to apply for a review of a Board decision, and

(b) the time period within which that right must be exercised would not have expired but for the repeal of that right on the date the section of the amending Act repealing that right came into force,

that person may request a review of that decision under section 96.2 before the time period referred to in paragraph (b) of this subsection has expired.

(2) If, on the transition date, a review is pending under section 201 of the Act, the review officer referred to in that section must continue and complete the proceeding, acting with the same power and authority that the review officer had under the Act before the provisions of the Act granting that power and authority were repealed by the amending Act.

(3) If, on or after the transition date and at the conclusion of a review referred to in subsection (2) of this section, a person would have had a right to appeal the review officer's decision to the appeal division under section 207 of the Act but for the repeal of that right on the date the section of the amending Act repealing that right came into force, that person may appeal the review officer's decision to the appeal tribunal within 30 days after the decision is sent out.

38 (1) Subject to subsection (3), all proceedings pending before the review board on the transition date are continued and must be completed as proceedings pending before the appeal tribunal except that section 253 (4) of the Act, as enacted by the amending Act, does not apply to those proceedings.

(2) In proceedings before the appeal tribunal under subsection (1), instead of making a decision under section 253 (1) of the Act, as enacted by the amending Act, the appeal tribunal may refer a matter back to the Board, with or without directions, and the Board's decision made under that referral may be reviewed under section 96.2 of the Act, as enacted by the amending Act.

(3) If, in a proceeding pending before the review board on the transition date, the review board has

(a) completed an oral hearing, or

(b) received final written submissions and begun its deliberations,

the review board must continue and complete those proceedings, acting with the same power and authority that the review board had under the Act before the provisions of the Act granting that power and authority were repealed by the amending Act.

(4) The appointments of the members of the review board who are sitting on proceedings described in subsection (3) are continued until those proceedings are completed.

39 (1) In this section, "proceedings" means

(a) appeal proceedings,

(b) proceedings for reconsideration of decisions,

(c) proceedings in requests under section 11 of the Act that were assigned to the appeal division, and

(d) proceedings under section 28 (5) and (6) of the Crime Victim Assistance Act.

(2) Subject to subsection (4) of this section, all proceedings pending before the appeal division on the transition date are continued and must be completed as proceedings pending before the appeal tribunal, except that section 253 (4) of the Act, as enacted by the amending Act, does not apply to those proceedings.

(3) In proceedings before the appeal tribunal described in subsection (2) of this section, instead of making a decision under section 253 (1) of the Act, as enacted by the amending Act, the appeal tribunal may refer a matter to the Board, with or without directions, and the Board's decision made under that referral may be reviewed under section 96.2 of the Act, as enacted by the amending Act.

(4) If, in a proceeding pending before the appeal division on the transition date, the appeal division has

(a) completed an oral hearing, or

(b) received final written submissions and begun its deliberations,

the appeal division must continue and complete those proceedings, acting with the same power and authority that the appeal division had under the Act before the provisions of the Act granting that power and authority were repealed by the amending Act.

(5) The appointments of the appeal commissioners who are sitting on proceedings described in subsection (4) are continued until those proceedings are completed.

40 (1) If, before the transition date,

(a) a person has not exercised a right under the Act to appeal a decision of the Board to the review board, and

(b) the time period within which that right must be exercised would not have expired but for the repeal of that right on the date the section of the amending Act repealing that right came into force,

that person may request a review of that decision under section 96.2, as enacted by the amending Act, before the time period referred to in paragraph (b) of this subsection has expired.

(2) Section 96.2 (4) applies to the time period referred to in subsection (1) (b) of this section.

41 (1) If, before the transition date,

(a) a person has not exercised a right under the Act

(i) to appeal a decision of the Board to the appeal division, or

(ii) to appeal a finding of the review board to the appeal division, and

(b) the time period within which that right must be exercised would not have expired but for the repeal of that right on the date the section of the amending Act repealing that right came into force,

that person may appeal the decision or finding to the appeal tribunal before the time period referred to in paragraph (b) of this subsection has expired.

(2) Section 243 (3) of the Act, as enacted by the amending Act, applies to the time period referred to in subsection (1) (b) and to the 30 day time period referred to in subsection (3) of this section.

(3) If, on or after the transition date and at the conclusion of a proceeding referred to in section 38 (3) of the amending Act, a person would have had a right to appeal the finding of the review board in that proceeding to the appeal division under section 91 (1) of the Act but for the repeal of that right on the date the section of the amending Act repealing that right came into force, that person may appeal the review board's finding to the appeal tribunal within 30 days after the finding is sent out.

(4) If a person appeals a decision or finding as permitted in this section, the appeal is governed by Part 4 of the Act, as enacted by the amending Act, except that section 253 (4) of the Act, as enacted by the amending Act, does not apply.

42 As may be necessary for the purposes of applying sections 250 (2) and 251 of the Act, as enacted by the amending Act, in proceedings under sections 38 (1) and 39 (2) of the amending Act, published policies of the governors are to be treated as policies of the board of directors.

43 The chair of the appeal tribunal may establish any rules, forms, practices and procedures required for the efficient and cost effective conduct of proceedings before the appeal tribunal under this Part.

44 The Lieutenant Governor in Council may make regulations respecting any matters that, in the opinion of the Lieutenant Governor in Council, are insufficiently provided for, or not provided for, in Part 2 of the amending Act and that are necessary

(a) for the orderly transition to the appeal tribunal of proceedings before the review board and the appeal division, and

(b) for the orderly completion of proceedings before the medical review panel on the repeal date, including the delegation to the appeal tribunal of all or any of the functions or responsibilities of the Board under sections 58 to 64 of the Act.

Consequential Amendments

Freedom of Information and Protection of Privacy Act

45 Schedule 2 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, is amended

(a) by striking out the following:

(b) by adding the following:

Commencement

46 This Act comes into force by regulation of the Lieutenant Governor in Council.

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