WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2635/15E

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2635/15E BEFORE: S. Peckover: Vice-Chair HEARING: December 4, 2015 at Toronto Written DATE OF DECISION: December 7, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2781 APPLICATION BY WORKER FOR ORDER EXTENDING THE TIME TO APPEAL APPEARANCES: For the worker: For the employer: Interpreter: J. Bartolomeo, Lawyer Not participating Not required Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2635/15E REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated October 2, 2014, which allowed entitlement for a cervical and trapezius strain from the date of accident (May 23, 2009) to July 20, 2009, the date on which the worker was deemed to have recovered. Entitlement was denied for the low back, bilateral knees, and a head injury. [2] The worker filed the notice of appeal (NOA) on April 7, 2014, five days after the April 2, 2014 expiry of the six-month statutory time limit for appealing this decision. [3] In his submissions dated July 7, 2014, Mr. Bartolomeo stated that the time limit was missed by one business day, since April 2, 2014 was the Thursday before Easter; Friday and Monday were holidays; and Tuesday, April 7, 2014 was the date on which the NOA was filed. He submitted that the failure to file within the time limit was a result of an error in the office tickler system used to keep track of files. He argued that it would be punitive to deny the worker the opportunity to appeal his decision because of an administrative oversight that was not his responsibility. [4] Mr. Bartolomeo indicated that the worker was represented by a legal clinic staffed by law students, with two lawyers supervising their work. The worker had come to expect that all communication and filing expectations would be handled by his representatives. He stated that even before the Appeals Services Division appeal, the worker had expressed the desire to pursue an appeal to the Tribunal, if unsuccessful. He noted that, in a debriefing meeting following the hearing on September 26, 2014, the worker had again expressed his desire to appeal if necessary. [5] Following issuance of the ARO decision on October 2, 2014, the worker again expressed his desire to appeal. One of the two law students assigned to his file advised him that the file would be reviewed. The worker thought the legal clinic was handling the matter. [6] The worker s former representative was one of the two staff lawyers at the clinic. He was hired on a temporary basis as of January 19, He held a meeting with the law student to review the file on February 4, Although he was supposed to review the file, he did not do so. He was not aware of, or did not appreciate, the impending time limit. [7] Mr. Bartolomeo then described the tickler system within the legal clinic, based on sworn affidavits from the former representative and the law student. He noted that responsibility for the worker s file had been listed erroneously as being with the other staff lawyer, who, upon receiving the tickler reminder, mistakenly believed that the appeal had been filed in accordance with the usual practice at the clinic. The representative was not in the office on April 2, When he learned of the error the following Tuesday, April 7, 2015, he immediately took steps to rectify the error. The NOA was filed the next business day after the six-month time limit, while the fully-completed NOA was filed on April 28, [8] Mr. Bartolomeo argued that the delay was minimal, and was too short to have impacted the staleness of the evidence or its reliability. The explanation for the delay was an administrative oversight in the clinic s tickler system. The lawyer responsible for the file did not get the reminder for the worker s file. He therefore was not aware of the impending time limit. Further, the worker had always had the intention to appeal an unfavourable decision, as demonstrated on three separate occasions. Further, the worker was not a sophisticated client, as

3 Page: 2 Decision No. 2635/15E this was his first claim. Mr. Bartolomeo argued that the worker should not be penalized for the actions of his representative. He submitted that the issues under appeal were of fundamental importance to the worker, as they will impact his ability to obtain loss of earnings (LOE) benefits and retraining. The financial consequences to the worker were significant. While there was a statutory time limit in place, it should not be used to punish a worker for the oversight of their representative. There was no prejudice to the employer, as he was not participating. [9] Mr. Bartolomeo also submitted that like cases should be decided alike, and he cited Decision No. 599/14E as authority for allowing an extension in similar circumstances. (ii) Issue [10] The issue on this application is whether the worker s request to extend the time to appeal should be granted. (iii) Law and policy [11] On January 1, 1998, section 125(2) of the Workplace Safety & Insurance Act, 1997 (the WSIA) came into effect. It provides that notice of appeal shall be filed with the Workplace Safety and Insurance Appeals Tribunal (the Tribunal) within six months of the Workplace Safety and Insurance Board s (the Board) decision or such longer period as the Tribunal may permit. [12] Section 125(2) applies to appeals of Board decisions made on or after January 1, For Board decisions made prior to January 1, 1998, section 112(3) of the WSIA provides that the appeal must be filed with the Tribunal by June 30, 1998, or such longer time as the Tribunal may permit. [13] The Tribunal s Practice Direction: Time Extension Applications indicates that the Tribunal generally counts the six months from the date on the Board decision to the date the notice of appeal is received by the Tribunal. Where there is a Board decision and a Board reconsideration of that decision, the date of the original decision is generally used. The date of the Board reconsideration decision will be used where the Board considered significant new evidence on the reconsideration or has changed the result of the original decision. [14] In determining time extension applications, Tribunal decisions have considered the following factors (see, for example, Decision No. 1493/98I ): The lapse of time between the expiration of the six months and the date the appeal was filed and any explanation for the delay; Whether there is evidence to show an intention to appeal prior to the expiry of the six months; Whether the applicant ought to have known of the time limit; Whether the applicant acted diligently; Whether there is prejudice to a respondent; Whether the case is so stale that it cannot reasonably be adjudicated; Whether the issue is so connected to another appeal that the Tribunal cannot reasonably adjudicate the other appeal without considering it;

4 Page: 3 Decision No. 2635/15E Whether a refusal to hear the appeal could result in a substantial miscarriage of justice due to defects in prior process or clear and manifest errors; Whether there are exceptional circumstances. [15] The purpose and gravity of statutory time limits has been cogently summarized in Decision No. 972/99E: Time limits are often in legislation for a number of reasons, including the need to ensure appeals are brought in a timely fashion, while the evidence, including the memories of witnesses involved in the case are fresh, to prevent prejudice to the other parties who may act on the basis of the prior decision, and to generally establish finality and certainty in the appeal system. The Tribunal's decision to extend time therefore must be exercised with a view to also ensuring the effective and consistent application of this provision. (iv) Analysis [16] With respect to the lapse of time between the appeal deadline and the Tribunal s receipt of the appeal documentation, the following excerpt from Decision No. 669/14E outlines the Tribunal s current position with respect to appeal deadlines: [5] Since January 1, 1998, all decisions emanating from the Board have made specific reference to the time limits in effect. All Tribunal correspondence similarly makes reference to the six month time limit. While some leniency was applied in the early transition days when the time limits came into effect and people were not as knowledgeable as they currently are, it is now generally presumed that practitioners in the area of compensation are familiar with both the time limits and the consequences of not meeting them. Accordingly, the presumption at this point should be that compelling reasons must exist not to enforce the time limits. There cannot be a presumption that an extension should be granted as a matter of course. [17] The purpose and gravity of statutory time limits has been summarized in Tribunal Decision No. 972/99E: Time limits are often in legislation for a number of reasons, including the need to ensure appeals are brought in a timely fashion, while the evidence, including the memories of witnesses Involved in the case are fresh, to prevent prejudice to the other parties who may act on the basis of the prior decision, and to generally establish finality and certainty in the appeal system. The Tribunal's decision to extend time therefore must be exercised with a view to also ensuring the effective and consistent application of this provision. Mr. King has also submitted such a brief delay [it was four days] should not be a bar to proceeding with an appeal. I am not persuaded that this leniency should be applied as a matter of course. The statutory time limit has been in effect for over 15 years and I find that, in general, if an appeal could be filed one or two days after the expiry of the statutory time limit, it could have been filed two days before the deadline. The time limit is not an optional requirement: it was deliberately inserted in the legislation some ten years ago, signalling a profound change in the manner in which appeals can proceed. The gravity of the statutory time limit is not acknowledged if the parties do not abide by it when it is feasible to do so. Even where the delay is minimal there should be consideration given as to whether there was any rational reason for the failure to comply with the deadline. A real difficulty with allowing a few day s grace on a routine basis is that there will still need to be a cut off point (whether one day, or 5 days, or 7 days, or whatever period of time is chosen), beyond which compelling reasons will

5 Page: 4 Decision No. 2635/15E need to be provided for the Tribunal to grant a time extension. In my view, the cut-off point might reasonably be seen to be the statutory time limit itself. Any other point for a general granting of a time extension could be perceived as arbitrary compared to the one set out in the legislation. There are a number of Tribunal decisions adopting this view and I find them to be persuasive. [18] Thus, since the statutory deadline has been in place for 17 years now, there must be compelling reasons not to enforce the deadline, and grant an extension. [19] In the case before me, the appeal deadline was missed by five days, or, as Mr. Bartolomeo points out, one business day, given the Easter long weekend. While this is not a lengthy delay, I agree with the above quotation, in that any point other than the time limit itself can be viewed as arbitrary compared to the one set out in the legislation. [20] Further, Mr. Bartolomeo cited Decision No. 599/14E, and argued that cases decided on similar facts must be decided in a similar manner. In this regard, I note the following quotation from that decision: (iii) Analysis For the reasons which follow I find that the application for a time extension should be allowed. While the representative s explanation for the delay, that his office failed to properly diarize the appeal deadline, is not usually accepted by the Tribunal as sufficient grounds to grant a time extension, I note that the delay between the expiry of the time limit and the subsequent notification is relatively minor: approximately three weeks. I find that the representative acted diligently upon learning that the time limit had expired. In addition, I note that the employer account has closed and would therefore not be prejudiced. Given the relatively short delay it cannot be said that the case is so stale that it cannot reasonably be adjudicated. [21] With respect, although this decision allows the time extension application, it does so while acknowledging that a representative s failure to properly diarize an appeal deadline is not usually accepted by the Tribunal as sufficient grounds to grant a time extension. This has been the predominant view at the Tribunal since at least 2000, as reflected in the following excerpt from Decision No. 3350/00E: Generally speaking, without more, the failure of a representative is not, in my view, a sufficient basis to extend the time for appeal. The prejudice that results for the worker as a result of this failure is one factor to consider in the light of other factors. However, for the Tribunal to routinely allow an extension of the time for appeal because of the failure of a representative to meet the statutory deadline would be to invite abuse of process, and would not be consistent with the intent of the legislature in introducing time limits for appeal. There is prejudice to a worker if the representative does not act with diligence in meeting the time limits, in any event, not only because the right to appeal is put at risk, but also because an application must be made for an extension of time. This results in delay even if the extension of time is granted. The need for this determination also creates an added burden for the Tribunal s scarce resources.

6 Page: 5 Decision No. 2635/15E Therefore, it is essential that representatives act professionally in complying with the statutory deadline. The time period for appeal is only properly extended in special circumstances. [22] I agree with that reasoning, and adopt it in adjudicating the case before me. I therefore find that, in the absence of any other extenuating circumstances, a representative s failure to file a NOA on time is not grounds for extending the time to appeal. In this case, the deadline was missed because the wrong lawyer was listed as having responsibility for the file when it was entered into the tickling system, with the result that the representative was unaware of the impending deadline. There are no other grounds for exercising my discretion to allow the time limit application. [23] The application therefore is denied.

7 Page: 6 Decision No. 2635/15E DISPOSITION [24] The application is denied. The worker is not granted an extension of time under section 125(2), and the appeal may not be heard by the Tribunal. DATED: December 7, 2015 SIGNED: S. Peckover