RULES OF PRACTICE AND PROCEDURE May 14, 2015
INDEX PART 1 INTRODUCTION... 1 PART 2 GENERAL RULES... 2 Rule 1 How the Rules are Applied... 2 Applying the Rules... 2 Conflict with the Act... 2 Rule 2 Consequences of Not Following the Rules... 3 Effect of not following the Rules... 3 If there are technical defects... 3 Rule 3 Communicating with the Tribunal... 3 Rule 4 Representation before the Tribunal... 3 How a party may be represented before the Tribunal... 3 Withdrawal of lawyer or agent... 3 Rule 5 Case Management Powers of the Tribunal... 3 Rule 6 Address for Delivery... 4 Address for delivery of notices and documents... 4 Change of address... 5 Rule 7 The Appeal Panel... 5 Power of a panel... 5 Rule 8 Form of Proceedings... 5 Written submission only proceeding... 5 Other forms of proceedings... 5 Interpreters at a teleconference call or in-person hearing... 5 Rule 9 Protection of Privacy and Use of Documents... 5 Disclosure of Documents... 5 Social Insurance Number... 5 Redactions... 6 Publication of decisions... 6 Use of documents and information... 6 Rule 10 Notice of Constitutional Question... 6 Rule 11 Compelling Witnesses and Ordering Disclosure... 6 Tribunal may compel participation and order disclosure... 6 Applying to compel participation and order disclosure... 6 Serving the order and witness fees and expenses... 7
Rule 12 Adjournments... 7 Adjourning a Hearing... 7 Applying for an adjournment... 7 Rule 13 Settlement... 7 Rule 14 Decisions and Orders... 8 Decisions and Orders... 8 Amending a final decision... 8 Rule 15 Filing Documents with the Tribunal... 8 Tribunal file number... 8 How to file documents with the Tribunal... 8 Confirmation of receipt of documents... 9 Multiple copies... 9 Requirements for documents... 9 Documents in a language other than English... 10 Electronic recordings... 10 Time for filing... 10 If the day for filing falls on a day that is not a business day... 10 Rule 16 Delivery of documents by the Tribunal... 10 Rule 17 The Parties and Interveners... 11 PART 3 APPEALS... 11 Rule 18 Filing an Appeal of a Determination... 11 Time limit for filing an appeal... 11 Grounds for appeal... 11 How to appeal... 11 Amending, altering, or adding to an appeal... 12 Rule 19 The Director s Record... 12 Rule 20 Tribunal Review of the Appeal... 12 If an appeal filed within the appeal period does not meet requirements... 12 Rule 21 Appeal Period Extension... 13 Requirements for requesting an extension of the appeal period pursuant to section 109(1)(b) of the Act... 13 Notifying the parties of the request to extend appeal period... 13 Responding to the request to extend the appeal period... 13 Final Reply... 13 Appeal Period Extension Decision... 14 Rule 22 Appeal Acknowledgement... 14 Disclosure of the Director s Record to the Appellant... 14 Objections to the completeness of the Director s Record... 14
Appeal assignment... 14 Rule 23 Appeal Proceeding... 14 Disclosure of the record... 15 Rule 24 Responding to an Appeal... 15 How to respond to an appeal... 15 Requirements for responding to an appeal... 15 Requesting an extension of the time to respond to an appeal... 15 Tribunal will assess the response to the appeal... 15 If a response does not meet requirements... 15 Rule 25 Final Reply on an Appeal... 16 Rule 26 The Appeal Decision... 16 PART 4 APPLICATION FOR RECONSIDERATION... 16 Rule 27 Filing an Application for Reconsideration... 16 Time limit for applying for reconsideration... 16 How to make an application for reconsideration... 16 Rule 28 Reconsideration Period Extension... 17 Requirements for requesting an extension of the reconsideration period pursuant to section 109(1)(b) of the Act17 Notifying the parties of the request to extend the reconsideration period... 17 Responding to the request to extend the appeal period... 17 Final Reply... 17 Reconsideration Period Extension Decision... 17 Rule 29 Tribunal Review of the Application for Reconsideration... 17 If an application for reconsideration does not meet requirements... 17 Rule 30 Application for Reconsideration Acknowledgement... 18 Reconsideration assignment... 18 Rule 31 Application for Reconsideration Proceeding... 18 Rule 32 Responding to an Application for Reconsideration... 18 How to respond to an application for reconsideration... 18 Extending the time to respond to an application for reconsideration... 19 Requirements for responding to an application for reconsideration... 19 Tribunal will assess the reconsideration response... 19 If a reconsideration response does not meet requirements... 19 Rule 33 Final reply on an Application for Reconsideration... 19 Rule 34 The Reconsideration Decision... 19
PART 5 SUSPENDING A DETERMINATION... 20 Rule 35 Request to Suspend a Determination... 20 Requirements for a request to suspend a determination... 20 Notice of suspension request... 20 Suspension decision... 20
RULES OF PRACTICE AND PROCEDURE PART 1 INTRODUCTION These Rules of Practice and Procedure (the Rules ) are made pursuant to section 103 of the Employment Standards Act (the Act ) and section 11 of the Administrative Tribunals Act. Documents contained in an appeal or application for reconsideration file may be disclosed to members of the public in certain circumstances. These circumstances include: (a) (b) (c) (d) at a hearing; upon publication of a Tribunal decision; as part of the judicial review process; a successful application under the Freedom of Information and Protection of Privacy Act ( FOIPPA ). PURPOSE The purpose of these Rules is to facilitate the adjudication of appeals of Determinations issued by the Director of Employment Standards and applications for reconsideration of Tribunal decisions in a fair, efficient, and just manner. The Tribunal will adjudicate a case in ways that are proportionate to the importance and complexity of the issues while ensuring that it is dealt with fairly and expeditiously. The provisions of these Rules are subject to any directions that the Tribunal may make in any particular case. DEFINITIONS In these rules: Act means the Employment Standards Act, RSBC 1996 Chapter 113 (as amended); address for delivery means a current postal address or, if allowed by the Tribunal, a fax number or e-mail address; appeal means an appeal filed under section 112 of the Act, and includes an amended appeal; appeal period is described in section 112(3) of the Act, as (a) 30 days after the date of service of the determination if the appellant was served by registered mail; or (b) 21 days after the date of service of the determination if the appellant was served in person or served under section 122(3) of the Act; appellant means a person served with a Determination who files an appeal with the Tribunal, and includes a business corporation, partnership, limited liability partnership, limited partnership or any other incorporated or unincorporated organization; applicant means a person who files an application for reconsideration, or another application, with the Tribunal, and includes a business corporation, partnership, limited liability partnership, limited partnership or any other incorporated or unincorporated organization; Employment Standards Tribunal Page 1
business day means 8:30 am to 4:30 pm Monday through Friday, excluding statutory holidays; decision means an order, direction, or other decision made by the Tribunal; determination means any decision made by the Director under section 30(2), 66, 68(3), 73, 76(3), 79, 100 or 119 of the Act; Director means the Director of Employment Standards appointed under the Public Service Act and, in relation to a function, duty or power that the Director has under section 117 of this Act delegated to another person, Director includes that other person; document means anything on which information is recorded or stored whether on paper or in electronic format; file means effective delivery of a document to the Tribunal; member means a person appointed to the Tribunal under section 102 of the Act; panel means one, three, or five members of the Tribunal that have been authorized to determine appeals and applications for reconsideration made to the Tribunal; party means an appellant, an applicant, a respondent, the Director, and any other person or group allowed by the Tribunal to participate in an appeal or application for reconsideration; reconsideration means an application filed under section 116 of the Act; Regulation means the Employment Standards Regulation; submissions mean any documents or information filed by a party with the Tribunal for consideration in an appeal or application for reconsideration; Tribunal means the Employment Standards Tribunal established under Part 12 of the Act, and includes a member of the Tribunal. PART 2 GENERAL RULES Rule 1 How the Rules are Applied Applying the Rules (1) These Rules of Practice and Procedure, as amended on May 14, 2015 (the Rules ), supersede all previous Rules. The Rules come into effect on May 14, 2015, and apply to all proceedings regardless of when those proceedings were commenced. (2) These Rules apply to all parties and, unless the Tribunal decides otherwise, all parties must comply with these Rules. Conflict with the Act (3) If any of these Rules conflict with the Act, the Act will apply. Employment Standards Tribunal Page 2
Rule 2 Consequences of Not Following the Rules Effect of not following the Rules (1) If a party does not follow these Rules, a decision, order, or any direction regarding procedure, the Tribunal may take such action it considers appropriate, including: (a) (b) (c) (d) (e) requiring that the failure be remedied; scheduling a hearing; If there are technical defects making a decision based on the information it has, with or without giving the parties an opportunity to make submissions; waiving the non-compliance; adjourning or dismissing the appeal or the application for reconsideration. (2) The Tribunal may waive a technical defect or irregularity in an appeal or in an application for reconsideration and consider the appeal or application for reconsideration as valid. Rule 3 Communicating with the Tribunal (1) Written communications with the Tribunal must be addressed to the Registrar unless otherwise specified. (2) A party s submission in the Tribunal process must not be abusive or disrespectful. Rule 4 Representation before the Tribunal How a party may be represented before the Tribunal (1) A party to an application may be self-represented or may be represented by a lawyer or an agent and may make submissions as to facts, law, and jurisdiction. (2) If a party appoints a representative, that party (or the representative if the representative is a lawyer) must notify the Tribunal of the appointment in writing. Withdrawal of lawyer or agent (3) A party must immediately notify the Tribunal in writing if the party s lawyer or agent withdraws or ceases to represent the party. Rule 5 Case Management Powers of the Tribunal (1) Subject to the provisions of the Act and any other applicable enactment, the Tribunal may regulate its own procedures. (2) The Tribunal will determine how a matter will be dealt with. Employment Standards Tribunal Page 3
(3) At any time, the Tribunal may issue instructions with respect to an appeal or an application for reconsideration. (4) Without restricting the powers in paragraphs (1), (2), and (3), the Tribunal may, to assist in the timely resolution of matters before it, (a) publish information sheets to assist the parties in using these Rules; (b) waive or amend any of these Rules; (c) determine the form of any hearing; (d) shorten or lengthen any time limit in these Rules; (e) consolidate appeals or applications for reconsideration; (f) direct that appeals or applications for reconsiderations be heard separately; (g) stay proceedings; (h) adjourn or postpone a hearing; (i) (j) (k) (l) (m) (n) (o) (p) define, narrow, or broaden the issues in order to decide the appeal or application for reconsideration; deal with an issue in the appeal or application for reconsideration as a preliminary issue; determine and disclose the order in which submissions will be accepted and disclosed; limit, or expand, the evidence or submissions on any issue; make further orders as are necessary to give effect to an order or direction under these Rules; attach terms or conditions to any order or direction; make orders or give directions as are necessary to prevent abuse of its processes; take any action the Tribunal considers appropriate in all the circumstances. Rule 6 Address for Delivery Address for delivery of notices and documents (1) Every party must provide written notice to the Tribunal of their address for delivery. (2) If a lawyer or agent represents a party, the lawyer or agent must provide written notice to the Tribunal of their address for delivery. (3) Subject to paragraph (4), if a party provides the Tribunal with a fax number or e-mail address that party must accept delivery of documents by that method. (4) If a party informs the Tribunal that a fax number or e-mail address should not be used to provide documents to that party, that form of communication must not subsequently be used by that party. (5) The Tribunal will use the address provided by a party or a representative as the address to which documents should be sent or delivered unless notified in writing of an alternate address for delivery. Employment Standards Tribunal Page 4
Change of address (6) A party or a party s lawyer or agent must immediately provide written notice to the Tribunal of a change in their address for delivery. Rule 7 The Appeal Panel (1) The Appeal Panel consists of one, three, or five members of the Tribunal. An appeal or application for reconsideration will usually be heard by one member. Power of a panel (2) The panel hearing the appeal will decide how the hearing is to be conducted and may receive and accept evidence and information that it considers necessary and appropriate, whether or not that evidence or information is admissible in a court of law. Rule 8 Form of Proceedings Written submission only proceeding (1) The Tribunal usually decides an appeal or application for reconsideration by way of a written submission only hearing. Other forms of proceedings (2) The Tribunal may also conduct hearings in person, by telephone, or by other electronic means, or any combination of those modes, as it considers appropriate. (3) If all or part of an appeal or application for reconsideration is to be decided by way of a telephone conference call or in-person hearing, the Tribunal will set the time, date, and place or contact information for the hearing and notify the parties. (4) If a party who has been notified of a hearing does not participate, the Tribunal may proceed with the hearing and make a decision in the absence of that party. Interpreters at a teleconference call or in-person hearing (5) If a party or their lawyer or agent requires an interpreter in a language other than English, that person must notify the Tribunal at least 14 days before the date set for the telephone conference call or inperson hearing. Rule 9 Protection of Privacy and Use of Documents Disclosure of Documents (1) The Tribunal may sever information from documents it discloses, subject to natural justice and procedural considerations. Social Insurance Number (2) Parties are requested to redact instances of the Social Insurance Number contained in their submissions. Employment Standards Tribunal Page 5
Redactions (3) A party must list and identify the location of any redactions made in a submission. (4) The Tribunal may request a party provide the Tribunal with an unredacted version of a submission. Publication of decisions (5) Decisions of the Tribunal are usually published on the Tribunal s website. They may also be published on law-related websites and in legal publications. Use of documents and information (6) A party and a party s representatives may not use documents obtained through the Tribunal s proceedings for any purpose other than in the proceeding before the Tribunal, the Director on remittal, or judicial review, unless otherwise authorized by the Tribunal or by a court. (7) If a party considers that the Tribunal should make an order prohibiting the disclosure of specific documents or information, that party must provide the documents and its full submissions in support of the order sought to the Tribunal. Rule 10 Notice of Constitutional Question If a constitutional question over which the Tribunal has jurisdiction is raised in an appeal or application for reconsideration, the party who raises the question must comply with section 8 of the Constitutional Question Act. Rule 11 Compelling Witnesses and Ordering Disclosure Tribunal may compel participation and order disclosure (1) At any time before or during an appeal or application for reconsideration, the Tribunal may make an order requiring a person: (a) to participate in a telephone conference call or in-person hearing to give evidence that is admissible and relevant to the appeal or application for reconsideration; (b) to produce for the Tribunal, or a party, a document or other thing in the person s possession or control, as specified by the Tribunal, that is admissible and relevant to an issue in the appeal or reconsideration application. Applying to compel participation and order disclosure (2) A party to an appeal or application for reconsideration may apply to the Tribunal in writing for an order requiring a person: (a) to participate in a telephone conference call or in-person hearing to give evidence that is admissible and relevant to the appeal or reconsideration application; (b) to produce for the Tribunal, or a party, a document or other thing in the person s possession or control that is, or may be, admissible and relevant in the appeal or reconsideration application. Employment Standards Tribunal Page 6
(3) An application to the Tribunal to require a person to participate or to produce documents must include: (a) (b) (c) (d) (e) the name and address of that person; an outline of the information or evidence that person will present; a list of the particular documents or other things that person must produce; the reasons why the person should participate or produce documents; an outline of any efforts made to have the person voluntarily participate or produce documents. (4) The Tribunal will advise the party in writing whether or not the application is granted. Serving the order and witness fees and expenses (5) The party who applies for an order for a person to attend or produce a document must serve the order on the person named by leaving the order with that person or by leaving it at the person s usual residence at least 5 business days before the date the person is required to appear or produce a document; and (6) The party who applies for an order for a person to attend or produce a document must pay any witness fees and expenses as directed by the Tribunal. Rule 12 Adjournments Adjourning a Hearing (1) The Tribunal may adjourn a hearing at any time. Applying for an adjournment (2) A party may apply to the Tribunal to adjourn a hearing. An application to adjourn must: (a) be made in writing; (b) include reasons why an adjournment is necessary; (c) state why granting the request will not unduly prejudice the other parties; and (d) be filed as soon as practicable. Rule 13 Settlement (1) At any time during an appeal or an application for reconsideration, the Tribunal may decide on its own, or at the request of a party, to conduct a settlement meeting to resolve one or more issues in dispute. (2) The Tribunal may appoint a member or other person to conduct a settlement meeting. (3) If a member conducts a settlement meeting and the appeal or application for reconsideration is not settled, that member will not decide the merits of the appeal or the application for reconsideration unless all parties consent in writing. Employment Standards Tribunal Page 7
(4) Unless all parties consent, or the Tribunal or a court orders otherwise, a person must not disclose or be compelled to disclose to any other person any documents produced or statements made during a settlement meeting. Rule 14 Decisions and Orders Decisions and Orders (1) The Tribunal may make a decision or order orally or in writing. (2) A decision or order of a panel, or a majority of a panel, is considered a decision or order of the Tribunal. (3) A member of a panel who dissents from the majority s decision may issue written reasons but these reasons do not constitute a decision of the Tribunal. Amending a final decision (4) A party may apply, or the Tribunal may decide on its own, to amend a final decision to correct any of the following: (a) a clerical or typographical error; (b) an accidental or inadvertent error, omission, or other similar mistake; or (c) an obvious arithmetical computation error. (5) Unless the Tribunal decides otherwise, an amendment will not be made more than 30 days after all parties have been served with the final decision. Rule 15 Filing Documents with the Tribunal Tribunal file number (1) The Tribunal will assign a file number to every appeal and application for reconsideration. A party must include this file number on all documents filed with the Tribunal after the number has been assigned. How to file documents with the Tribunal (2) A party or any other person must include the following information when filing any document with the Tribunal: (a) name of the appellant/applicant and respondent in the appeal or reconsideration; (b) name of the person filing the document and, if applicable, his/her representative s name; (c) mailing address, telephone number and, if available, e-mail address and facsimile number of the person filing the document or his/her representative; and (d) Tribunal file number, if available. (3) A party may file documents with the Tribunal by mail, fax, hand, e-mail, or as directed by the Tribunal. If requested, a party must provide the original document to the Tribunal. Employment Standards Tribunal Page 8
Filing by mail (a) A party may file documents with the Tribunal by pre-paid post. The post-marked date is the date used to determine the date the document is received by the Tribunal. Filing by hand or by courier (b) A party may deliver documents to the Tribunal s office located at Suite 650, 1066 West Hastings Street, Vancouver, BC, on a business day. Filing by fax (c) A party may file up to 50 pages of documents with the Tribunal by fax. If there are more than 50 pages, a party may file by fax only if the party first receives permission from the Tribunal. The Tribunal s fax number is 604-775-3372. Filing by e-mail (d) A party may file up to 50 pages of documents with the Tribunal by e-mail. The Tribunal s e- mail address is registrar@bcest.bc.ca. If there are more than 50 pages, a party may file by e- mail only if the party first receives permission from the Tribunal. (e) The e-mail message must contain the name, telephone number, and e-mail address of the sender. (f) Correspondence and documents may be sent as either text in the body of the e-mail, or as attachments subject to subsections (d) and (j). (g) Documents required to be in a form designated by the Tribunal must be sent in that form as attachments. (h) Attachments must be sent in a format supported by the software used by the Tribunal. Please contact the Tribunal for the format or formats which may be used in sending attachments to the Tribunal. (i) An attachment sent to the Tribunal in an inappropriate format will be treated as not having been received by the Tribunal. (j) The total size of the e-mail must not exceed 9.5 megabytes (MB). (k) Where the e-mail is regarding an appeal or application for reconsideration that is under consideration by the Tribunal, the subject line of the e-mail should contain the Tribunal file number. Confirmation of receipt of documents (4) It is a party s responsibility to confirm with the Tribunal that the Tribunal has received the filed documents by the filing deadline. Multiple copies (5) A party may be required to provide multiple copies of a document if that party s documents are in excess of 50 pages. Requirements for documents (6) Documents filed with the Tribunal must be legible. Employment Standards Tribunal Page 9
(7) Documents must be on standard letter-size paper (8½ x 11 ). If the documents to be filed are not on standard, letter-sized paper a party must contact the Tribunal in advance of filing to request permission to file the documents. Documents in a language other than English (8) If a party files a document in a language other than English, the party must include a certified English translation by an accredited professional translator. The translator s professional qualifications must be set out in a separate attachment. Electronic recordings (9) If a party files an electronic recording with the Tribunal, the party may be required to provide a certified transcription of the recording. Time for filing (10) A party may file a document with the Tribunal during a business day. If the Tribunal receives a document outside of a business day, it will consider the document to be filed on the next business day. (11) Unless otherwise specified, when a date is given for serving of a document or for doing some other act, the complete document, including those transmitted via fax or e-mail, must be received by the Tribunal or the relevant party by 4:30 pm on that date. Any document or part of a document received after 4:30 pm will be deemed to have been filed on the next business day. (12) Where an action is required to be done within a specified number of days, the days are counted by excluding the first day and including the last day. If the day for filing falls on a day that is not a business day (13) If the deadline for filing a document with the Tribunal falls on a day that is not a business day, the party may file the document on the next business day. Rule 16 Delivery of documents by the Tribunal (1) The Tribunal may deliver a document to a party or other person by mail, fax, hand, courier, process server, or e-mail. (2) If the Tribunal delivers a document by mail, the document is considered to be delivered five days after it was mailed, unless that day is not a business day of the Tribunal, in which case the document is considered to be delivered the next business day. (3) If the Tribunal delivers a document by fax or e-mail, the document is considered to be delivered on the day after it was sent unless that day is not a business day of the Tribunal, in which case the document is considered to be delivered the next business day. (4) If a party wishes to establish that, through absence, accident, illness, or other cause beyond its control, it did not receive a document by the deemed date of delivery, it must notify the Tribunal as soon as practicable, then provide its submission and supporting evidence by the deadline set out by the Tribunal. Employment Standards Tribunal Page 10
Rule 17 The Parties (1) The following persons are parties to an appeal or application for reconsideration: (a) (b) (c) the appellant / the applicant; the respondent(s); and the Director. (2) The Tribunal may direct that any other person or group who may be affected by an appeal or application for reconsideration be added as a party, in which case the Tribunal will specify the terms and conditions of their participation in the proceeding. PART 3 APPEALS Rule 18 Filing an Appeal of a Determination Time limit for filing an appeal (1) An appellant must file an Appeal within a time limit called the appeal period, described in section 112(3) of the Act as follows: (a) (b) Grounds for appeal 30 days after the date of service of the determination if the person was served by registered mail; and 21 days after the date of service of the determination if the person was personally served or served under section 122(3). (2) An appellant may appeal the determination to the Tribunal on one or more of the following grounds: (a) (b) (c) the director erred in law; the director failed to observe the principles of natural justice in making the determination; evidence has become available that was not available at the time the determination was being made. How to appeal (3) To appeal a determination, an appellant must do all of the following within the appeal period described in section 112(3) of the Act: (a) complete an Appeal Form (Form 1 see Appendix to these Rules); (b) deliver the completed Appeal Form along with any attachments to the Tribunal within the appeal period; (c) deliver a complete copy of the determination and a complete copy of the written reasons for the determination to the Tribunal within the appeal period; and (d) confirm that a copy of the Appeal Form has been delivered to the Director. Employment Standards Tribunal Page 11
Amending, altering, or adding to an appeal (4) If, pursuant to Section 86(1) of the Act, the Director varies the determination after an appellant has filed an appeal, the appellant may amend the appeal. (5) To amend an appeal, the appellant must, within 30 days of being served with the varied determination if the appellant was served by registered mail or within 21 days after the date of service of the varied determination if the appellant was served in person or served under section 122(3) of the Act: (a) file the varied determination with the Tribunal; (b) file an amended appeal in writing to the Tribunal; and (c) confirm with the Tribunal that a copy of the amended Appeal Form has been delivered to the Director. (6) A party cannot reserve a right to amend, alter or add to an appeal where the Director has not varied the determination after the appellant has filed an appeal. Any application for permission to amend must be made before the deadline for responses to the appeal and must be accompanied by a draft of the amended appeal which makes clear the precise amendments for which permission is sought. Rule 19 The Director s Record (1) The Director must, as required by section 112(5) of the Act, provide the Tribunal with a complete copy of the record that was before the Director at the time the determination was made. The Tribunal may request the Director provide further copies of the Record. (2) The record must be provided by the deadline set by the Tribunal. (3) The record must be page numbered and be organized chronologically with the submissions made by the employer and the complainant identified. (4) The Director must advise the Tribunal whether or not the submissions in the record were disclosed to the other parties prior to the issuance of the Determination. (5) The Director is requested to redact instances of the Social Insurance Number contained in the record from the copy of the record provided to the Tribunal. The Director must list and identify the location of any redactions made in the record. The Tribunal may request the original un-redacted document be provided to the Tribunal. Rule 20 Tribunal Review of the Appeal (1) After the Tribunal has received an appeal, it will review the appeal and determine whether it is complete and meets the filing requirements of section 112 of the Act and these Rules. If an appeal filed within the appeal period does not meet requirements (2) If an appeal filed within the appeal period does not meet all the requirements as set out in Rule 18(3) or 18(5) and section 112 of the Act, the Tribunal may: (a) notify the appellant that the appeal must be completed within the appeal period before it will be accepted; and Employment Standards Tribunal Page 12
(b) set out the time limits, within the appeal period, for the appellant to complete the appeal and comply with any other directions. (3) If an appellant files the completed appeal within the time set out, the Tribunal will treat the appeal as timely. (4) If the appellant s appeal is not completed or is not filed within the time set out, the Tribunal may decline to proceed with the appeal. If the Tribunal declines to proceed with the appeal, it will notify the appellant in writing. (5) If an appellant s appeal is completed and filed outside the appeal period, the Tribunal will request the appellant provide reasons for filing a late appeal under Rule 21(2). Rule 21 Appeal Period Extension Requirements for requesting an extension of the appeal period pursuant to section 109(1)(b) of the Act (1) An application for an extension of time for filing an appeal, pursuant to section 109(1)(b) of the Act, will not be considered until the requirements of Rule 18(3), and where appropriate Rule 18(5), have been met. (2) The written request to extend the appeal period should include, at a minimum, (a) A completed Appeal Form (b) (c) A reasonable and credible explanation for the extension sought if the request is being made before the appeal period has expired or a reasonable and credible explanation for failing to request an appeal within the statutory limit if the appellant has filed the appeal after the appeal period; Submissions on the appeal in sufficient detail to allow the Tribunal to determine whether the appeal, on its face, is meritorious. Notifying the parties of the request to extend appeal period (3) The Tribunal may notify the other parties of the request to extend the appeal period. (4) The Tribunal may request a response from the respondent and the Director to the appeal period extension request. Responding to the request to extend the appeal period (5) If a response is requested from a party the response must be made to the Tribunal in writing by the requested deadline. Final Reply (6) If a response was received from any of the other parties, the Appellant will be given the opportunity to file a reply within a time limit. (7) The reply must be made to the Tribunal in writing by the deadline set by the Tribunal. Employment Standards Tribunal Page 13
Appeal Period Extension Decision (8) The Tribunal will advise the parties in writing of its decision to either deny the request or extend the appeal period and allow the appeal to proceed on its merits. (9) The decision will be published in print and posted on the Tribunal s website. Rule 22 Appeal Acknowledgement (1) Once the Tribunal has assessed the documents the Tribunal will notify the other parties of the appeal in written correspondence which: (a) acknowledges that the Tribunal has received the appeal; (b) provides the Director and the respondent(s) with a copy of the Appeal Form and any document filed with the appeal; and (c) requests the Director provide the Tribunal with a complete copy of the record that was before the Director at the time the determination was made. (2) The Tribunal will provide the Appellant with a copy of the letter delivered to the Director and the respondent(s). Disclosure of the Director s Record to the Appellant (3) The Tribunal will provide a copy of the Director s Record to the Appellant and request that the Appellant provide any objections to the completeness of the Record. The Appellant s response must be: (a) submitted to the Tribunal in writing; and (b) be filed with the Tribunal within the allowed time. Objections to the completeness of the Director s Record (4) The Tribunal will disclose the Appellant s objections to the completeness of the Record, if any, to the Director and request the Director provide a response to the objections. The Director s response must be: (a) submitted to the Tribunal in writing; and (b) be filed with the Tribunal within the allowed time. Appeal assignment (5) A Tribunal Member will review the appeal. The Tribunal Member, without seeking submissions from the parties, may dismiss all or part of the appeal and/or confirm all or part of the Determination. (6) If all or part of the appeal is dismissed the Tribunal will issue a decision. Rule 23 Appeal Proceeding (1) If the appeal is not dismissed the Tribunal will send a letter to the Director and the respondent(s) which: Employment Standards Tribunal Page 14
(a) (b) acknowledges that the appeal will be proceeding; and invites the Director and the respondent(s) to respond to the merits of the appeal within a time limit. (2) The Tribunal will provide the Appellant with a copy of the letter delivered to the Director and the respondent(s). Disclosure of the record (3) The Tribunal may provide a copy of the record received from the Director, a content list of the record, or make the record available for personal inspection to the other parties. (4) If the Tribunal makes a copy of the record available for inspection, it will notify all parties of the location of the record and the time during which it may be inspected. (5) If a party has been provided a content list of the record, the party may request a copy of any part of the record or the entire record from the Tribunal. Rule 24 Responding to an Appeal How to respond to an appeal (1) To respond to an appeal, the respondent(s) and the Director must: (a) make a response in writing; and (b) file the response with the Tribunal within the allowed time. Requirements for responding to an appeal (2) A response must contain: (a) the party s full name and address for delivery; (b) the Tribunal file number; and (c) a detailed submission in response to the appeal including copies of all relevant documents. Requesting an extension of the time to respond to an appeal (3) A request for an extension of time to file a response must be made in writing to the Tribunal and in advance of the allowed deadline to respond. (4) The Tribunal may canvass the other parties to ascertain their position on the request prior to granting or denying an extension. Tribunal will assess the response to the appeal (5) When the Tribunal receives a response, it will review the response, decide whether it is complete, and decide whether it meets the filing requirements of these Rules. If a response does not meet requirements (6) If a response does not meet the filing requirements, the Tribunal may: (a) notify the party that the response must be corrected before it will be accepted; and (b) set out the time limit for the party to correct the response and follow any other directions. Employment Standards Tribunal Page 15
(7) If a party s response is not corrected or is not filed within the time set out the Tribunal may hear and decide the appeal without considering the response. Rule 25 Final Reply on an Appeal (1) The Tribunal may provide a copy of all responses to all other parties and permit the Appellant to file a final reply within a time limit. (2) If the Appellant does not file a final reply within the time limit that party may not later file a final reply without the prior permission of the Tribunal. The Tribunal will grant permission only in exceptional circumstances. Rule 26 The Appeal Decision (1) After considering whether the grounds for appeal have been met, the Tribunal may, by order, (a) (b) confirm, vary or cancel the determination under appeal, or refer the matter back to the Director. (2) The Tribunal will issue written reasons for decision and will provide a copy of its decision to all parties of record. (3) The decision may be published in accordance with Rule 9(5). PART 4 APPLICATION FOR RECONSIDERATION Rule 27 Filing an Application for Reconsideration (1) The Tribunal may reconsider any order or decision it makes. The Tribunal may decide on its own to reconsider an order or decision, or it may do so on the request of the Director or a person served with an order or a decision of the tribunal. Time limit for applying for reconsideration (2) The applicant should deliver the application for reconsideration as soon as possible after the Tribunal decision, but in any event within 30 days after the date of the Tribunal order or decision. How to make an application for reconsideration (3) To apply for a reconsideration of a decision or order of the Tribunal, an applicant must: (a) (b) complete a Reconsideration Application Form (Form 2 see Appendix at the end of these Rules); and deliver the completed Reconsideration Application Form along with any supporting documents to the Tribunal. Employment Standards Tribunal Page 16
Rule 28 Reconsideration Period Extension Requirements for requesting an extension of the reconsideration period pursuant to section 109(1)(b) of the Act (1) The written request to extend the reconsideration period should include, at a minimum, (a) (b) (c) A completed Reconsideration Application Form A reasonable and credible explanation for the extension sought if the request is being made before the statutory reconsideration period has expired or a reasonable and credible explanation for failing to request a reconsideration within the statutory limit if the appellant has filed the request after the reconsideration period; Submissions on the reconsideration in sufficient detail to allow the Tribunal to determine whether the reconsideration request, on its face, is meritorious. Notifying the parties of the request to extend the reconsideration period (2) The Tribunal may notify the other parties of the request to extend the reconsideration period. (3) The Tribunal may request a response from the respondent and the Director to the request to extend the reconsideration period. Responding to the request to extend the appeal period (4) If the Tribunal requests a response from a party, the response must be made to the Tribunal in writing by the requested deadline. Final Reply (5) If a response was received from any of the other parties, the Applicant will be given the opportunity to file a reply within a time limit. (6) The reply must be made to the Tribunal in writing by the deadline set by the Tribunal. Reconsideration Period Extension Decision (7) The Tribunal will advise the parties in writing of its decision to either deny the request or to extend the reconsideration period and allow the reconsideration request to proceed on its merits. (8) The decision will be published in print and posted on the Tribunal s website. Rule 29 Tribunal Review of the Application for Reconsideration (1) When the Tribunal receives an application for reconsideration, it will review the application and determine whether it meets the filing requirements of section 116 of the Act and these Rules. If an application for reconsideration does not meet requirements (2) If the application for reconsideration does not meet all the requirements as set out in Rule 27(4) and section 116 of the Act, the Tribunal may: (a) notify the applicant that the application must be corrected before it will be accepted; and (b) set out the time limits for the applicant to correct the application and comply with any other directions. Employment Standards Tribunal Page 17
(3) If an applicant files the corrected application within the time set out, the Tribunal will treat the application as though it had been filed on the day it was originally received. (4) If the application is not corrected or is not filed within the time set out, the Tribunal may be unable to proceed with the application. If the Tribunal is unable to proceed with the application, it will notify the applicant in writing. Rule 30 Application for Reconsideration Acknowledgement (1) Once the Tribunal has reviewed the application for reconsideration the Tribunal will notify the other parties of the application for reconsideration. (2) The Tribunal may provide the other parties with a copy of: (a) the Reconsideration Application Form; and (b) any document filed with the reconsideration application. (3) The Tribunal will provide the Applicant with a copy of the letter delivered to the Director and the respondent(s). Reconsideration assignment (4) A Tribunal Member will assess the application for reconsideration. The Tribunal Member, without seeking submissions from the parties, may dismiss all or part of the application for reconsideration. (5) If all or part of the application for reconsideration is dismissed the Tribunal will issue a decision. Rule 31 Application for Reconsideration Proceeding (1) If the application for reconsideration is not dismissed the Tribunal will send a letter to the Director and the respondent(s) which: (a) acknowledges that the application for reconsideration will be proceeding; (b) invites the Director and the respondent(s) to respond to the application for reconsideration within a time limit. (2) The Tribunal will provide the Applicant with a copy of the letter delivered to the Director and the respondent(s). Rule 32 Responding to an Application for Reconsideration How to respond to an application for reconsideration (1) To respond to an application for reconsideration, a party must: (a) set out in writing its full submission in response to the application; and (b) file the written response with the Tribunal within the allowed time. Employment Standards Tribunal Page 18
Extending the time to respond to an application for reconsideration (2) A request for an extension of time to file a response to an application for reconsideration must be made in writing to the Tribunal and in advance of the allowed deadline to respond. (3) The Tribunal may canvass the other parties to ascertain their position on the request prior to granting or denying an extension. Requirements for responding to an application for reconsideration (4) A response must contain: (a) the party s full name and address for delivery; (b) the Tribunal file number; and (c) a detailed submission in response to the reconsideration application. Tribunal will assess the reconsideration response (5) When the Tribunal receives a response, it will review the response, decide whether it is complete, and decide whether it meets the filing requirements of these Rules. If a reconsideration response does not meet requirements (6) If a response does not meet all the filing requirements, the Tribunal will: (a) notify the party that the response must be corrected before it will be accepted; and (b) set out the time limit for the party to correct the response and follow any other directions. (7) If the party s response is not corrected or is not filed within the allowed time, the Tribunal may proceed to consider the application for reconsideration without considering the response. Rule 33 Final reply on an Application for Reconsideration (1) The Tribunal may provide a copy of all responses to the other parties and will permit the Applicant to file a final reply within a time limit. (2) If the Applicant fails to file a final reply within the time allowed, that party may not later file a final reply without the Tribunal s prior permission. The Tribunal will grant permission only in exceptional circumstances. Rule 34 The Reconsideration Decision (1) The Tribunal may, by order, confirm, vary or cancel the order or decision or refer the matter back to the original panel or another panel. (2) The Tribunal will advise the parties in writing of its decision. (3) The decision will be published in print and may be posted on the Tribunal s website in accordance with Rule 9(5). Employment Standards Tribunal Page 19
PART 5 SUSPENDING A DETERMINATION Rule 35 Request to Suspend a Determination Requirements for a request to suspend a determination (1) In order to request a suspension under section 113 of the Act an appellant or applicant must, in writing, at the same time as filing the appeal or application for reconsideration: (a) (b) (c) Notice of suspension request state the reasons for the request to suspend the determination; state the amount to be deposited with the Director; and if that amount is less than the amount required to be paid by the Director, state the reasons why depositing a lesser amount would be adequate in the circumstances. (2) The Tribunal may notify the other parties of the request to suspend the determination and set a time limit for responding to the request. Suspension decision (3) If the request is not otherwise resolved, the Tribunal will advise the parties in writing of its decision on the request. Employment Standards Tribunal Page 20
APPENDIX: Forms Form 1 Appeal Form Form 2 Reconsideration Application Form Employment Standards Tribunal
APPEAL FORM (Form 1) This Appeal Form, along with the required attachments, must be delivered to the Employment Standards Tribunal within the appeal period. See Rule 18(3) of the Tribunal s Rules of Practice & Procedure. Please read the Guide to the Appeal Form before completing this form. The Guide explains what you need to write in each section of the Appeal Form. 1. Company/Organization/Individual named in the Determination ( Appellant ): Name Address Phone Fax Do you consent to receive documents via e-mail? Yes, my e-mail address is No, I prefer to receive a paper copy only 2. c/o Applicant s lawyer or agent (if applicable): Postal Code Name Address Postal Code Phone Fax Do you consent to receive documents via e-mail? Yes, my e-mail address is No, I prefer to receive a paper copy only 3. State your grounds for appeal (See Section 112(1) of the Employment Standards Act). The Director of Employment Standards erred in law. The Director of Employment Standards failed to observe the principles of natural justice in making the Determination. Evidence has become available that was not available at the time the Determination was being made. 4. Provide your reasons and argument for appeal on a separate sheet of paper. Attach any supporting documents. The reasons, argument, and supporting documents should be received by the Tribunal within the appeal period. 5. What do you want the Tribunal to do about the Determination? Change or vary it? How? Cancel it? Refer it back to the Director of Employment Standards? May 14, 2015 Page 1 of 2
APPEAL FORM (Form 1) 6. This is a request for an extension to the appeal period. If you are filing your appeal before the appeal period has expired, please provide, on a separate sheet of paper, a reasonable and credible explanation for the extension sought. (See Rule 21 of the Tribunal s Rules) If you are filing your appeal after the appeal period has expired, please provide, on a separate sheet of paper, a reasonable and credible explanation for failing to request an appeal within the statutory limit. (See Rule 21 of the Tribunal s Rules) 7. Submit the following documents to the Tribunal within the appeal period. (by mail to Suite 650, 1066 West Hastings Street, Vancouver, BC V6E 3X1, or by e-mail to registrar@bcest.bc.ca or by fax to 604-775-3372) Completed and signed Appeal Form (Form 1) (2 pages) Written reasons and argument supporting each of your grounds of appeal A complete copy of the determination. The written reasons for the Determination. Attach any documents that support your appeal Written reasons for your request for an extension to the appeal period (if applicable) The Tribunal may require you to provide multiple copies of your appeal submission if it is longer than 50 pages. (See Rule 15(5) of the Tribunal s Rules) 8. I confirm I have delivered a copy of this appeal to the Director of Employment Standards. [PO Box 9570 Stn Prov Govt, Victoria BC V8W 9K1 or by fax at 250-356-1886] in accordance with Section 112(2)(b) of the Employment Standards Act. 9. Sign and date this Appeal Form (Form 1). Print Name: Signature: Date: If you are submitting this appeal on behalf of an organization what is your your relationship to the organization (for example, director, officer, manager): May 14, 2015 Page 2 of 2