2002 Legislative Session: 3rd Session, 37th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
HONOURABLE GRAHAM BRUCE
MINISTER OF SKILLS
DEVELOPMENT AND LABOUR
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia enacts as follows:
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;
"review officer" means an officer of the Board who is designated under section 96.6; .
2 Section 11 is repealed.
3 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".
4 Sections 58 to 66, except sections 58 (3) and (4) and 63 (1), are repealed.
5 Sections 58 (3) and (4) and 63 (1) are repealed.
6 Section 79 is repealed.
7 Section 81 is amended
(a) by repealing subsection (1) (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.
8 Section 82 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".
9 Section 84.1 (4) (c) is amended by striking out "the appeal commissioners and".
10 Sections 85 to 85.2 are repealed.
11 Section 86 (6) and (7) is repealed.
12 Section 87 (1) and (2) is amended by striking out ", including the appeal division," wherever it appears.
13 Section 88 (2) is amended by striking out ", and the review board has,".
14 Sections 89 to 93 are repealed.
15 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".
16 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."
17 Section 96 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), the Board may at any time at its discretion reopen, review and reconsider any matter that has been dealt with by it or by an officer or employee of the Board, except
(a) a matter in respect of which a review officer has made a decision under section 96.91, or
(b) a matter referred to in section 240 in respect of which
(i) an appeal has been brought under Part 4, and
(ii) a decision made by the appeal tribunal.
(3) The Board's discretion and authority under subsection (2) to reconsider a matter are subject to the following limitations:
(a) in the absence of exceptional circumstances, the Board must not reconsider any matter that was dealt with more than 3 years before
(i) a request for reconsideration is made, or
(ii) the Board, on its own initiative, begins considering whether to exercise its authority under subsection (2),
whichever is applicable;
(b) if the Board is reconsidering a matter that was dealt with more than 3 years before the events identified in paragraph (a), the Board's decision on the reconsideration does not operate retroactively unless the Board also determines that exceptional circumstances justify retroactive operation.
(4) Subsection (3) does not apply to a reconsideration under section 24.
(5) 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.
(6) 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.
18 Section 96.1 is repealed and the following substituted:
96.1 In sections 96.2 to 96.91, "review" means a review by a review officer.
96.2 (1) Subject to subsection (2), a person referred to in section 96.3 may request a review of
(a) a Board decision in a specific case respecting the following matters:
(i) compensation or rehabilitation under Part 1;
(ii) assessment or classification under Part 1, or
(b) a Board order in a specific case respecting an occupational health or safety matter under Part 3.
(2) No review may be requested under
(a) subsection (1) (a) respecting an assessment under section 223 (1) (a),
(b) subsection (1) (b) respecting a determination or an order, a refusal to make an order or a cancellation of an order under section 153,
(c) subsection (1) (b) respecting an order, a refusal to make an order or a cancellation of an order for which a penalty notice has been issued under section 196 (2) unless
(i) a review had already been requested and was pending when the notice was issued, or
(ii) the order was made less than 90 days before the penalty notice was served, or
(d) subsection (1) (b) respecting an order imposing an administrative penalty under section 196 (6) if the employer accepted the proposed penalty under section 196 (4) (a).
(3) Nothing in sections 96.2 to 96.91 limits the Board's general power under section 96 (2) to review Board decisions.
96.3 (1) Any of the following persons who is directly affected by a decision referred to in section 96.2 (1) (a) (i) may request a review of that decision:
(a) a worker;
(b) a deceased worker's dependant;
(c) an employer.
(2) An employer who is directly affected by a decision referred to in section 96.2 (1) (a) (ii) 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) (b) may request a review of that decision or order:
(a) a worker;
(b) an employer;
(c) a supplier as defined in section 106;
(d) a union as defined in section 106;
(e) an owner as defined in section 106;
(f) a member of a deceased worker's family.
(4) An authorized representative of a person referred to in this section may request a review of a decision or order on behalf of that person.
96.4 (1) A person referred to in section 96.3 may request a review by filing a request with the Board.
(2) A request for review must
(a) be made in writing or in another form acceptable to the Board,
(b) identify the decision or order for which a review is requested,
(c) state why the decision or order is incorrect or why it should be changed, and
(d) state the outcome requested.
96.5 (1) A request for review must be filed within 90 days after the Board's decision or order was made.
(2) On application and where it is considered that an injustice would otherwise result, a review officer may extend the time to file a request for review even if the time to file has expired.
96.6 (1) The Board may designate an officer of the Board as a review officer to conduct a review.
(2) The Labour Relations Code does not apply to a review officer.
96.7 Unless, on application, a review officer directs otherwise, a review by the review officer of a decision or an order does not operate as a stay or suspend the operation of that decision or order.
96.8 (1) 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.
(2) If a party to the review does not make a submission within the time required in 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.
(3) A review officer may require an employer who is a party to a review respecting a matter referred to in section 96.2 (1) (b) to post a notice in a specified form and manner to bring the review to the attention of the employees of the employer.
96.9 (1) For the purposes of a specific review, if the employer has ceased to be an employer within the meaning of Part 1, the review officer may deem an employer's 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 review officer 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.
96.91 (1) 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.
(2) The review officer may
(a) confirm, vary or cancel the decision or order under review, or
(b) refer the decision or order under review back to the Board, along with directions.
(3) Subject to section 239, a decision by the review officer under this section is final.
19 Section 106 is amended by repealing the definition of "appeal tribunal".
20 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), the Board may at any time at its discretion reopen, review and reconsider any matter that is within the jurisdiction of the Board under this Part, except
(a) a matter in respect of which a review officer has made a decision under section 96.91, or
(b) a matter referred to in section 240 in respect of which
(i) an appeal has been brought under Part 4, and
(ii) a decision made by the appeal tribunal.
(2.1) The Board's discretion and authority under subsection (2) to reconsider a matter are subject to the following limitations:
(a) in the absence of exceptional circumstances, the Board must not reconsider any matter that was dealt with more than 3 years before
(i) a request for reconsideration is made, or
(ii) the Board, on its own initiative, begins considering whether to exercise its authority under subsection (2),
whichever is applicable;
(b) if the Board is reconsidering a matter that was dealt with more than 3 years before the events identified in paragraph (a), the Board's decision on the reconsideration does not operate retroactively unless the Board also determines that exceptional circumstances justify retroactive operation. , 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 that
(a) was within the jurisdiction of the Board, or
(b) the Board, director, officer or employee believed was within the jurisdiction of the Board.
21 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.
22 Section 196 (8) is amended
(a) by striking out "on appeal," and substituting "on a review under sections 96.2 to 96.91 or on an appeal to the appeal tribunal under Part 4,", and
(b) by striking out "section 96 (7)" and substituting "section 259 (2)".
23 Section 197 is repealed.
24 Divisions 13 and 14 of Part 3 are repealed.
25 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 and prescribing who may appeal those decisions or orders; , and
(b) by adding the following paragraph:
(m) respecting the awarding of costs by the appeal tribunal in an appeal under Part 4.
26 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);
"medical practitioner" includes a person entitled to practise medicine under the laws of another jurisdiction;
"members of the appeal tribunal" means the chair, vice chairs and representative members;
"presiding member" means the member of the appeal tribunal chairing a panel of the tribunal;
"representative member" means a member of the appeal tribunal appointed under section 232 (2) (c);
"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) up to 4 representative members appointed by the chair, after consultation with the minister, with equal 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 5 years and may be reappointed for one or more successive terms of up to 5 years each.
(4) The vice chairs and representative members 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) Individuals are not eligible for appointment as vice chairs or representative members unless they have successfully completed a competency-based selection process established or approved by the chair.
(6) All members of the appeal tribunal must perform their duties and functions in a fair, impartial and expeditious manner.
(7) Before commencing 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.
(8) The Labour Relations Code and the Public Service Labour Relations Act do not apply to members of the appeal tribunal.
(9) Despite subsections (3) and (4), if a member of the appeal tribunal is absent or incapacitated, the Lieutenant Governor in Council, if the member is the chair, or the chair, if the member is a vice chair or a representative 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 representative 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, an annual operations plan and an annual budget 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 and specifying consequences for failing to comply with those time periods,
(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 (f);
(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 ensures the privacy of the parties to the appeal;
(h) for the purposes of section 249, establishing a list of medical practitioners;
(i) presiding over meetings of the appeal tribunal;
(j) establishing panels;
(k) ordering that appeals with common or similar subject matter be considered 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.
(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 share information on matters of common interest and importance to the workers' compensation system.
(8) On or before June 15 of each year, the chair must make a report to the minister respecting the appeal tribunal's operations for its preceding fiscal year.
(9) The minister may require the annual report referred to in subsection (8) to address specified matter and to be in a required 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 set the conditions of appointment of the members of the appeal tribunal, by contract or otherwise.
237 (1) The annual budget of the appeal tribunal must be approved by the minister.
(2) On request of the minister, the Board must allocate money from the accident fund for the appeal tribunal's expenditures in the annual budget approved under subsection (1).
(3) The appeal tribunal must establish and maintain an accounting system satisfactory to the minister.
(4) The minister may request the Comptroller General appointed under section 8 of the Financial Administration Act to examine and report to the minister on the finances and financial operations of the appeal tribunal.
(5) The costs of any examinations and reports referred to in subsection (4) must be paid 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) Two or more panels may proceed with separate appeals at the same time.
(4) 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.
(5) Subject to subsections (6) and (7), panels must consist of the chair sitting alone or a vice chair sitting alone.
(6) If the chair determines that a matter under appeal requires consideration by a 3 member panel, the chair may appoint a panel consisting of
(a) the chair or a vice chair, acting as presiding member, plus 2 additional vice chairs, or
(b) the chair or a vice chair, acting as presiding member, plus one representative member with experience in employers' interests and one representative member with experience in workers' interests.
(7) 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 consisting of
(a) the chair or a vice chair, acting as presiding member, plus additional vice chairs, or
(b) the chair or a vice chair, acting as presiding member, plus additional vice chairs and representative members.
(8) If a panel is constituted under subsection (7) (b),
(a) there must be an equal number of representative members appointed who have experience in employers' interests and who have experience in workers' interests, and
(b) vice chairs must constitute a majority of the membership of the panel.
(9) A panel has the power and authority of the appeal tribunal in an appeal assigned to the panel under this section.
(10) 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.
Division 2 -- Appeal Rights
239 (1) Subject to subsection (2), a final decision made by a review officer in a review under sections 96.2 to 96.91 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 under section 96.5 (2), 96.7 or 96.9 (1) or any other decision respecting the conduct of the review;
(b) a decision under 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 classification under Part 1, except the assignment of an employer to, or withdrawal of an employer from, a class or subclass that
(i) has employers as members, and
(ii) does not have subclasses as members;
(f) a decision respecting an order under Part 3 other than an order
(i) relied upon to impose an administrative penalty under section 196 (6),
(ii) imposing an administrative penalty under section 196 (6), or
(iii) made under section 195 to cancel or suspend a certificate.
240 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.
241 (1) 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) (i) may appeal that decision:
(a) a worker;
(b) a deceased worker's dependant;
(c) an employer.
(2) An employer who is directly affected by a decision of the review officer in respect of a matter referred to in section 96.2 (1) (a) (ii) may appeal that decision.
(3) 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) (b) may appeal that decision:
(a) a worker;
(b) an employer;
(c) a supplier as defined in section 106;
(d) a union as defined in section 106;
(e) an owner as defined in section 106;
(f) a member of a deceased worker's family.
(4) Any of the following persons who is directly affected by a decision or an order referred to in section 240 may appeal that decision or order:
(a) a worker;
(b) an employee;
(c) a union as defined in section 106.
(5) An authorized representative of a person referred to in this section may appeal a decision on behalf of that person.
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 must be filed within 30 days after the decision or order being appealed was made.
(2) On application and where it is considered that 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, an appeal to the appeal tribunal of a decision or order does not operate as a stay or affect the operation of that decision or order.
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 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 or affirmation, 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 affirmation 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) (b) to post a notice in the specified form and manner to bring 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 such time as the Board makes that determination.
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 or affirmation, 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 employer's 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 of a Board decision respecting a specific matter, a review officer deemed a person to be an employer under section 96.9, the group or employer's adviser who was deemed to be the employer in that review is deemed to be the employer in any appeal of the review officer's decision in that matter.
249 (1) The chair must establish a list of medical practitioners who may be retained to provide assistance or advice on the request of the appeal tribunal in an appeal.
(2) The list established by the chair under subsection (1) must not include any person who is employed by the Board.
(3) After taking into account any fee schedule established by the Board for services provided by physicians or specialists, the chair may determine the terms and conditions, including remuneration and reimbursement of expenses, under which a medical practitioner may be retained by the appeal tribunal under this section.
(4) Except with the written consent of the parties to the appeal, the appeal tribunal must not retain a medical practitioner to provide assistance or advice in respect of a specific appeal if the medical practitioner
(a) has previously examined the worker whose claim is 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, or
(e) is a partner or practices medicine with a medical practitioner described in this subsection.
(5) If the appeal tribunal determines that an issue on an appeal concerns the Board's medical finding or medical decision, the presiding member may require a worker to submit to an examination by one or more medical practitioners who are retained by the presiding member from the list described in subsection (1).
(6) If the presiding member requires a worker to submit to an examination under subsection (5), the presiding member may set the terms of reference for the examination, including any specific questions or advice to be provided by the medical practitioner in the report referred to in subsection (7).
(7) Medical practitioners retained under subsection (5) must give the appeal tribunal a written report of their examination of a worker and the appeal tribunal must give a copy of that report to the parties to the appeal.
(8) The parties to an appeal may make submissions to the appeal tribunal in respect of the report provided to them under subsection (7).
(9) If a worker fails to present himself or herself for the examination required under subsection (5) 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) suspend making a final decision until the medical practitioner has had the opportunity to examine the worker and give the required report to the tribunal;
(b) continue the proceedings and make a decision based upon the evidence before it;
(c) make a determination that the worker is deemed to have abandoned the appeal.
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 it is, subject to section 251, bound by an applicable policy of the board of directors.
(3) The appeal tribunal is bound by a decision of a panel appointed under section 238 (7) unless
(a) the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances in the panel's decision, or
(b) the decision does not take into account an applicable policy of the board of directors.
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 or the board of directors, as the case may be, makes a determination under this section.
(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 60 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) The board of directors must provide the parties to the appeal with the opportunity to make written submissions on the review under subsection (6).
(8) If the board of directors determines under subsection (6) that the policy should be applied, 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 may delegate this authority 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 it is considered that 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) 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 is commenced, or
(b) if a shorter time period is prescribed by the Lieutenant Governor in Council, within that shorter time period.
(3) The chair may extend the applicable time period under subsection (2) if
(a) the complexity 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.
(4) If the appellant has requested a delay for the reasons referred to in subsection (3) (b), the chair may extend the time for not more than 45 days.
(5) If the time is extended under subsection (4), the chair, on application, must extend the time for an additional period not exceeding that granted under subsection (4) to allow the other parties to the appeal to submit new evidence or to make additional submissions.
(6) The chair may extend the time under this section even if the applicable time period under subsection (2) 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 a review officer's decision as permitted under section 239;
(b) all appeals from a Board decision or order 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) Subject to section 251, the Board is bound by a decision or an action of the chair or of the appeal tribunal made under this Part.
256 (1) Despite section 255 (1), a party to a completed appeal under this Part may apply to the chair for reconsideration of the decision of the appeal tribunal in that appeal if new evidence has become available or been discovered.
(2) On receipt of an application under subsection (1), 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.
(3) A 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 determi-nation 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.
258 (1) Where a claim is allowed by a review officer following a review under sections 96.2 to 96.91, periodic payments must begin and a lump sum under section 17 (13) must be paid.
(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) Despite section 19.1, 22 (1), 23 (1) or (3), 29 (1) or 30 (1) or subsection (1) of this section, where a decision of the review officer is appealed under section 239, any compensation that has not yet been paid, with respect to the time period before the review officer made his or her decision, must be deferred until the appeal tribunal makes its decision.
(4) If the appeal tribunal's decision is in favour of the worker or the deceased worker's dependants, interest must be paid on compensation that has been deferred under subsection (3).
(5) Interest payable under subsection (4) must be calculated in accordance with the policies of the board of directors and begins
(a) 31 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 sections 96.2 to 96.91 or of an appeal under this Part respecting a matter described in section 96.2 (1) (a) (ii) does not relieve an employer from paying an amount in respect of a matter that is subject of the review or appeal.
(2) If the employer is successful in the review or appeal referred to in subsection (1), the amount to be returned to the employer must be accompanied by interest, calculated in accordance with the policies of the board of directors, on the amount to be returned.
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.
261 Section 221 applies to this Part.
Part 2 -- Transitional Provisions
27 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 5 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.
28 Despite section 232 (2) and (3) of the Act, as enacted by the amending Act,
(a) the Lieutenant Governor in Council may appoint the first chair of the appeal tribunal for a term of fewer than 5 years, and
(b) after consultation with the first chair of the appeal tribunal, the minister must appoint the first vice chairs and first representative members of the appeal tribunal.
29 (1) Subject to subsection (2), all proceedings pending before the review board on the transition date are deemed to be appeals pending before the appeal tribunal and the appeal tribunal must continue those proceedings as if the appeal tribunal were the review board acting with the same power and authority that the review board had under the Act before the sections of the Act granting that power and authority were repealed by the amending Act.
(2) Despite subsection (1), 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,
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 sections of the Act granting that power and authority were repealed by the amending Act.
30 (1) In this section, "proceedings" means appeal proceedings, proceedings for reconsideration of decisions or proceedings in requests under section 11 of the Act assigned to the appeal division.
(2) Subject to subsection (3), all proceedings pending before the appeal division on the transition date are deemed to be proceedings pending before the appeal tribunal and the appeal tribunal must continue those proceedings as if the appeal tribunal were the appeal division acting with the same power and authority that the appeal division had under the Act before the sections of the Act granting that power and authority were repealed by the amending Act.
(3) Despite subsection (2), 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,
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 sections of the Act granting that power and authority were repealed by the amending Act.
31 Sections 250 (2) and 251 of the Act, as enacted by the amending Act, apply to all proceedings referred to in sections 29 (1) and 30 (2) of the amending Act and, as necessary for these purposes, published policies of the governors are deemed to be policies of the board of directors.
32 (1) All proceedings pending under sections 58 (3) and (4) 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 the party requested an examination under section 58 (3) or (4), or a determination under section 63 (1), as the case may be.
33 (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 review board or to the appeal division, or
(ii) to appeal a decision 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 to the appeal tribunal before the time period referred to in paragraph (b) has expired.
(2) If an appeal right is exercised under this section, the appeal is governed by Part 4 of the Act, as enacted by the amending Act.
(3) The chair of the appeal tribunal may extend the time to file an appeal under this section as permitted in section 243 (2) of the Act, as enacted by this amending Act.
34 If, before the repeal date,
(a) a person has not exercised a right under section 58 (3) or (4) or 63 (1) 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.
35 The Lieutenant Governor in Council may make regulations respecting transitional issues arising from this Act.
Consequential Amendments
Freedom of Information and Protection of Privacy Act
36 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:
|
Public Body: |
Workers' Compensation Review Board |
|
Head: |
Chair , and |
(b) by adding the following:
|
Public Body: |
Workers' Compensation Appeal Tribunal |
|
Head: |
Chair . |
37 This Act comes into force by regulation of the Lieutenant Governor in Council.
Explanatory Notes
SECTION 1: [Workers Compensation Act, amends section 1] repeals the definition of "review board" and defines "appeal tribunal" and "review officer".
SECTION 2: [Workers Compensation Act, repeals section 11] repeals the authority of the Workers' Compensation Board to certify findings for court actions under section 11.
SECTION 3: [Workers Compensation Act, amends section 37 (2) and (3)] clarifies the authority of the Board to establish subclasses of classes and subclasses of subclasses for the purpose of making assessments to maintain the accident fund.
SECTION 4: [Workers Compensation Act, repeals sections 58 to 66, except sections 58 (3) and (4) and 63 (1)] repeals the provisions establishing medical review panels and their jurisdiction to examine workers and certify their medical findings.
SECTION 5: [Workers Compensation Act, repeals sections 58 (3) and (4) and 63 (1)] repeals rights to refer matters to a medical review panel.
SECTION 6: [Workers Compensation Act, repeals section 79] repeals definitions of "appeal commissioner", "appeal division" and "chief appeal commissioner".
SECTION 7: [Workers Compensation Act, amends section 81 (1) (c) and (3)] removes references to the chief appeal commissioner.
SECTION 8: [Workers Compensation Act, amends section 82 (2) (a) and (3) (c)] removes references to the chief appeal commissioner.
SECTION 9: [Workers Compensation Act, amends section 84.1 (4) (c)] removes a reference to the appeal commissioners.
SECTION 10: [Workers Compensation Act, repeals sections 85 to 85.2] repeals the provisions providing for an appeal division of the Workers' Compensation Board.
SECTION 11: [Workers Compensation Act, repeals section 86 (6) and (7)] repeals the provisions providing for compensation of the appeal division commissioners and excluding them from specified legislation.
SECTION 12: [Workers Compensation Act, amends section 87 (1) and (2)] removes references to the appeal division of the Workers' Compensation Board.
SECTION 13: [Workers Compensation Act, amends section 88 (2)] removes a reference to the Workers' Compensation Review Board which is repealed by this Bill.
SECTION 14: [Workers Compensation Act, repeals sections 89 to 93] repeals provisions respecting the Workers' Compensation Review Board and the appeal division of the Workers' Compensation Board.
SECTION 15: [Workers Compensation Act, amends section 94 (2) (b) and (3) (b)] substitutes references to the Workers' Compensation Review Board and the appeal division of the Workers' Compensation Board with a reference to the Workers' Compensation Appeal Tribunal established by this Bill.
SECTION 16: [Workers Compensation Act, amends section 95 (1.1)] clarifies when information respecting a claim file may be disclosed.
SECTION 17: [Workers Compensation Act, amends section 96]
SECTION 18: [Workers Compensation Act, re-enacts section 96.1 and enacts sections 96.2 to 96.91]
SECTION 19: [Workers Compensation Act, amends section 106] repeals the definition of "appeal tribunal" in Part 3.
SECTION 20: [Workers Compensation Act, amends section 113]
SECTION 21: [Workers Compensation Act, amends section 156] clarifies the confidentiality obligations of the appeal tribunal and its staff.
SECTION 22: [Workers Compensation Act, amends section 196 (8)] clarifies that the reference to appeal in this provision is to the Workers' Compensation Appeal Tribunal and adds a reference to reviews as enacted by this Bill.
SECTION 23: [Workers Compensation Act, repeals section 197] repeals rules for review of orders under Division 13 of Part 3 in relation to administrative penalties.
SECTION 24: [Workers Compensation Act, repeals Divisions 13 and 14 of Part 3] repeals
SECTION 25: [Workers Compensation Act, amends section 224 (2)]
SECTION 26: [Workers Compensation Act, enacts Part 4]
SECTION 27: [Definitions] defines the terms used in Part 2 of this Bill.
SECTION 28: [Initial appeal tribunal appointments] specifies that despite section 232 of the Workers Compensation Act, the Lieutenant Governor in Council may appoint the first chair of the Workers' Compensation Appeal Tribunal for a term of fewer than 5 years and the minister, after consultation with the first chair, must appoint the first vice chairs and representative members of the appeal tribunal.
SECTION 29: [Review board proceedings] provides that all proceedings pending before the review board when the Workers' Compensation Appeal Tribunal is established must be continued before the new appeal tribunal; however, if, in a pending proceeding, the oral hearing had been completed or all the written submissions filed, the review board must continue and complete the proceeding.
SECTION 30: [Appeal division proceedings] provides that all proceedings pending before the appeal division of the Board when the Workers' Compensation Appeal Tribunal is established must be continued before the new appeal tribunal; however, if, in a pending proceeding, the oral hearing had been completed or all the written submissions filed, the appeal division must continue and complete the proceeding.
SECTION 31: [Application of policies to transitional proceedings] clarifies that sections 250 (2) and 251 of the Workers Compensation Act respecting application of policies of the board of directors apply to all transitional proceedings referred to in sections 29 (1) and 30 (2) of this Bill.
SECTION 32: [Medical review panel proceedings] provides that all proceedings pending under sections 58 (3) and (4) and 63 (1) of the Workers Compensation Act when those provisions are repealed are to be continued and completed.
SECTION 33: [Unexercised appeal rights to review board or appeal division]
SECTION 34: [Unexercised rights to medical review panel] allows a person who had an unexercised right under section 58 (3) or (4) or 63 (1) of the Workers Compensation Act before those sections were repealed to exercise that right within any remaining time period.
SECTION 35: [Power to make regulations] allows the Lieutenant Governor in Council to make regulations respecting transitional issues arising from this Bill.
Freedom of Information and Protection of Privacy Act
SECTION 36: [Freedom of Information and Protection of Privacy Act, amends Schedule 2] updates a reference to the Workers' Compensation Appeal Tribunal.
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