Appeal Rules

4. The Hearing and Decision

Division 1
The Hearing

Scope of hearing

4.1(1) Under section 13.1(1) of the Act, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under the Act and the regulations in respect of an appeal.

(2) Consequently, the Appeals Commission is not restricted to reviewing only those issues stated in the notice of appeal, but may consider all issues and questions that it concludes arise under the Act and the regulations in respect of the appeal.

(3) This also means that the Appeals Commission may hear and decide an appeal as if the matter had not previously been decided and may consider any evidence obtained by it or presented to it that it considers to be relevant to the appeal.

Information note

Section 13.1(1) of the Act reads:

(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of appeals from decisions under section 46 made by a review body appointed under section 45, appeals from decisions under section 120 made by a review body appointed under section 119, appeals from determinations of the Board under section 21(3), and any other matters assigned to it under this or any other Act or the regulations under this or any other Act, and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court.

Request for hearing form

4.2(1) All hearings of the Appeals Commission must be conducted in private unless the Appeals Commission otherwise directs.

(2) The Appeals Commission may permit a person to observe a hearing on any conditions that the Commission considers appropriate.

Recording the hearing and transcripts

4.3(1) The Appeals Commission may record a hearing, or part of it, in a manner that can be transcribed to provide a written record of the proceeding.

(2) If a party wishes to obtain all or part of a transcript of proceedings recorded in accordance with a direction of the Appeals Commission it may do so at its own cost, unless the Appeals Commission directs the cost to be paid by the Commission.

4.4(1) A chair of an Appeals Commission panel has the authority to control proceedings to ensure that a hearing is conducted in a manner that is respectful of all participants, Appeals Commission members and Appeals Commission staff.

(2) A disruptive, disrespectful or threatening person may be ordered by the panel chair to leave the hearing room or to be removed from the hearing room.

(3) A person who is disruptive, disrespectful or threatening to Appeals Commission staff may also have their access to Appeals Commission staff or premises restricted by the chief appeals commissioner, or made subject to conditions, whether the disruption, disrespect, or threat occurs before, at or after a hearing, and wherever it occurs.

4.5(1) Other than parties in a hearing who are or may be witnesses, the Appeals Commission may exclude other witnesses from the hearing room except when they give their evidence.

(2) The Appeals Commission may require a party to give evidence before any other witnesses are called to give evidence on behalf of the party.

(3) Except with consent of the Appeals Commission, there must be no communication with an excluded witness about evidence given at the proceeding during their absence until the witness gives evidence.

1. decide to hear the matter on the basis of the documents before the Appeals Commission, and the representations of the party or parties attending the hearing,
    
   
2. adjourn the matter to a later date, subject to any conditions the Appeals Commission may impose, or
    
   
3. if the appellant does not attend, adjourn the hearing and in accordance with rule 3.13 [Dismissal of appeal for delay] give notice to the parties of its intention to consider whether or not to dismiss the appeal for delay in proceeding.

(2) A party, other than the appellant, who has been given notice of a hearing and who does not attend the hearing is presumed to have waived their right to receive and respond

1. to evidence or submissions presented at the hearing, and
   
   
2. to evidence or submissions received by the Appeals Commission after the hearing, if any.

1. in considering an appeal from a decision under section 46 of the Act, the Appeals Commission must consider the records of the claims adjudicator and the review body relating to the claim;
   
   
2. in considering an appeal from a decision under section 120 of the Act, the Appeals Commission must consider the records and information available to the review body relating to the matter under consideration;
   
   
3. in considering an appeal from a determination of the Board under section 21(3) of the Act, the Appeals Commission must consider the records and information available to the Board relating to the matter under consideration.

(2) The Appeals Commission must also consider all relevant evidence submitted by a party that relates to the appeal and that is submitted to the Appeals Commission in accordance with these rules.

(3) The Appeals Commission may admit any evidence, including hearsay evidence, that it considers relevant to the appeal, whether or not a court would admit the same evidence. However, the Appeals Commission may decide not to admit evidence that it considers to be repetitious, serves no purpose, or is not relevant.

Form of evidence

4.8 In addition to the appeal documents package, the Appeals Commission may consider evidence in any one or more or in any combination of the following forms:

1. in written form;
    
   
2. by affidavit or affirmation;
    
   
3. orally in person or by telephone conference call or other electronic means;
    
4. any other manner the Appeals Commission considers appropriate.

Questioning by Appeals Commission

4.9 The Appeals Commission may question a witness at a hearing, including asking questions about the record or any other evidence or information before it.

Evidence need not be under oath or affirmation

4.10 A witness need not give evidence under oath or affirmation that the evidence will be the truth, the whole truth and nothing but the truth unless the Appeals Commission so requires or the witness so requests.

Agreed statement of facts

4.11 The Appeals Commission may accept a statement of facts agreed to by the parties, without proof or evidence of the facts stated.

Adjournment during hearing

4.12 The Appeals Commission may adjourn a hearing at any time during a hearing and reschedule the hearing to a new date, time or location or until conditions specified by the Appeals Commission are met.

Argument and written submissions

4.13(1) After the parties have had an opportunity to present evidence, the Appeals Commission must give every party at the hearing an opportunity to make a final argument.

(2) The Appeals Commission may require the parties to submit written argument on any issue and, if it does so, must direct the order and timing of the submission of written argument and rebuttal argument.

(3) A party should include in their final argument the specific remedy, direction or decision they want the Appeals Commission to make.
 

Division 2
Appeals Commission Decisions

1. include findings of fact on which the decision is based,
    
2. state the conclusion reached, and
   
   
3. give reasons for the decision.

1. the Workers’ Compensation Act;
    
2. the Workers’ Compensation Regulation (AR 325/2002);
    
3. when it is applicable, the Firefighters’ Primary Site Cancer Regulation (AR 102/2003);
    
4. any other Act or regulation that applies to the matter the Appeals Commission has to make a decision about.

(2) The Appeals Commission is also bound by the Workers’ Compensation Board of Directors’ policy relating to the matter under appeal. However, that policy is not binding on the Appeals Commission if it is inconsistent with the Act or regulations under the Act.

New or additional information

4.16 If, before a decision is made on an appeal, evidence that was not available before the hearing becomes available, or if evidence available before the hearing but which could not, on reasonable and justifiable grounds, be produced at the hearing, becomes available, the Appeals Commission may

1. consider whether the evidence should be presented;
    
2. provide an opportunity for every other party to review the information and make submissions on it and its relevance;
    
3. consider reopening the hearing to hear evidence related to the information;
    
4. consider giving notice to the Board and other parties to hear representations on the application of Board policy, the Act or the regulations with respect to the information.

What decisions can the Appeals Commission make?

4.17 Under section 13.2(6) of the Act, the Appeals Commission may

1. confirm, reverse, or vary a decision under appeal;
    
2. refer any matter back to the review body or Board that made the decision for further action or decision, with or without directions.

1. the appellant,
    
2. the Board, and
    
3. every other party to the appeal.

(2) The decision, or a version of it modified to protect confidentiality or privacy, must also be placed on the Appeals Commission’s web site unless the Appeals Commission decides that to do so would be inappropriate or unnecessary in the circumstances.

Technical errors and omissions

4.21(1) Subject to rule 4.22 [Clarification], after a decision becomes an official decision of the Appeals Commission, the panel that heard and decided the appeal has no further authority to review and change their signed decision, other than to correct

1. obvious slips, typographical errors,
    
2. errors of calculation,
    
3. misstatements and technical errors, or
    
4. omissions in its decision.

(2) These corrections may be made without first giving notice to the parties but the parties must subsequently be promptly notified of the correction.

Clarification

4.22 Under section 13.2(7) of the Act, the panel of the Appeals Commission making a decision may clarify any directions given in respect of a decision at the request of an affected person or the Board.
 

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