Appeals and repeals: all about Workers’ Compensation Appeal Tribunal

Workers’ compensation law in Canada is built on a trade-off, where workers give up the right to sue in exchange for guaranteed, no-fault benefits. It may sound straightforward, until a claim gets denied or a civil action land on lawyer’s desk. When that happens, the Workers’ Compensation Appeal Tribunal (WCAT) and its provincial equivalents become increasingly relevant for legal practitioners and their clients.

In this article, we’ll discuss what these WCATs do, how to appeal their decisions, and the legal tests to overcome in doing so.

What does the Workers’ Compensation Appeal Tribunal do?

The Workers’ Compensation Appeal Tribunal (WCAT) is a provincial body that is independent and final-level appellate body for workers’ compensation disputes. In British Columbia, for instance, it sits outside WorkSafeBC and reviews decisions made by the internal Review Division.

Other provinces have equivalent bodies, such as:

• Ontario: Workplace Safety and Insurance Appeals Tribunal (WSIAT)
• Saskatchewan: Board Appeal Tribunal (BAT)
• Alberta: Appeals Commission

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

The WCAT’s power to bar a civil action

The WCAT in BC also does something that matters deeply to personal injury lawyers. It has exclusive authority under s. 257 of the BC’s Workers Compensation Act (WCA) to certify whether a civil action is statute-barred.

In plain terms, WCAT can tell a court that a plaintiff cannot sue because the injury arose out of and in the course of employment. More importantly, the court is bound by that finding by the WCAT.

This process, called a section 257 determination, asks three questions:

• Was the injured person a worker at the time?
• Was the defendant a worker or employer at the time?
• Did the injury arise out of and in the course of employment?

If all three are answered yes, s. 10 of the WCA bars the civil action.

Other province’s equivalent provisions are:

• Ontario: s. 31 application under the Workplace Safety and Insurance Act (WSIA)
• Saskatchewan: s. 169 of The Workers’ Compensation Act, with decisions guided by the five-question test from Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 SCR 890.

Legal precedents in the WCAT

One important note: WCAT is not bound by legal precedent. It decides cases based on WorkSafeBC’s policy manuals rather than prior rulings. Primarily, it uses the Rehabilitation Services and Claims Manual, Volume II (RSCM II).

Outcomes can vary in factually similar cases, which makes understanding the policy framework as important as knowing the case law.

Can a Workers’ Compensation Board decision be appealed?

Yes, the decision by a Workers’ Compensation Board (WCB) can be appealed. In most provinces, there are multiple levels to work through before reaching the independent tribunal.

British Columbia: appeals before the WorkSafeBC

WorkSafeBC decisions go first to the internal Review Division. Requests for review of compensation decisions must be filed within 90 days. If that review goes against you, most decisions can then be appealed to WCAT within 30 days.

Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms.

Alberta: appeals before the WCB-Alberta

Alberta runs a structured three-step process:

• WCB Customer Service: The original case manager reviews the decision, with initial contact typically within five business days.
• Dispute Resolution and Decision Review Body (DRDRB): The first formal internal review. A Resolution Specialist typically issues a written decision within 30 to 60 days.
• Appeals Commission: A three-commissioner panel hears the appeal, with decisions usually within six to eight weeks.

You cannot skip the DRDRB and go straight to the Appeals Commission. This means that the internal process must be fully exhausted first.

In addition, the deadline to file with the DRDRB is one year from the date of the original decision letter, and missing it is almost always fatal.

Appeals before WCAT – Nova Scotia and Ontario’s WSIB

In Nova Scotia, appeals go to WCB’s internal Appeals Department first, then to the Workers’ Compensation Appeals Tribunal (WCAT — Nova Scotia) within 30 days, with leave to appeal to the Nova Scotia Court of Appeal available after that.

On the other hand, Ontario’s Workplace Safety and Insurance Board (WSIB) uses its Appeals Services Division at the first level, and decisions from there can be appealed to WSIAT within six months.

When does a Workers’ Compensation Board coverage bars a person from suing?

This is where the stakes are highest for personal injury practitioners. The workers’ compensation bar applies when an injury is found to have arisen “out of and in the course of employment.”

The two-part test to bar a person from suing

Here, there’s a two-part test that must be satisfied on the balance of probabilities, and both parts must be met independently:

Part one: “Arising out of”

This asks whether the worker’s employment was of causative significance in the injury. While employment does not need to be the sole cause, it must be more than trivial.

For example, under Yukon’s Workers’ Safety and Compensation Board Policy 2.1, effective July 1, 2022, an injury does not arise out of employment if caused by a hazard to which the worker would have been equally exposed outside of work.

Part two: “in the course of”

This second test asks whether the injury happened at a time, place, and during an activity consistent with and reasonably incidental to the worker’s employment. An example of what is not covered is routine commuting.

How the two-part test plays out in practice

The grey zone is the intersection of personal and employment activity. In BC, this is addressed under the WorkSafeBC’s Board Policy C3-18.00. The policy acknowledges this weighing “can never be devoid of intuitive judgment.”

It means that an incidental intrusion of personal activity into employment is not automatically fatal to a claim. Also, an incidental intrusion of employment into a personal activity does not automatically create coverage too.

Case law on personal and employment activity

In Kerr v. Workers’ Compensation Appeal Tribunal, 2017 BCSC 1245, the British Columbia Supreme Court gave the clearest illustration of how thin that line can be.

In this case, the court upheld WCAT’s denial of coverage for a BC Cancer Agency employee. Such employee tripped on a sidewalk maintained by the Northern Health Authority while walking to her car after work, and while continuing a mentoring conversation with a student.

WCAT found that the work conversation was only an incidental intrusion into what was otherwise a personal commute, and both parts of the test failed independently.

The Kerr case also carries a procedural warning. Here, the petitioner challenged only the “in the course of” finding on judicial review, not the “arising out of” finding. The court dismissed the petition.

As shown by this case, when the WCAT has made findings against an injured person on both parts of the test, both must be challenged, and attacking only one leaves the other standing.

When civil rights survive

In any case, a civil tort action remains available where:

• either part of the dual test fails
• the plaintiff is not a “worker” under the relevant statute, such as an independent contractor found to be in business on their own account under the test from 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59
• the defendant is a third-party tortfeasor unconnected to the employer’s workers’ compensation coverage
• the industry or occupation falls outside mandatory coverage in that province

What’s the appeal process with the Workers’ Compensation Board and how long does it take?

Timelines vary significantly across provinces when appealing with a Workers’ Compensation Board or a Workers’ Compensation Appeal Tribunal, and there is no uniform national standard:

• BC (WorkSafeBC internal review): the Review Division targets completion within 90 days, though complex files can take longer
• BC (WCAT section 257 determination): no mandatory timeline under s. 257(3) of the BC’s WCA, although these applications regularly exceed one year
• Alberta (DRDRB): typically, 30 to 60 days, but it may be extended where independent medical assessments are ordered
• Alberta (Appeals Commission): normally, the appeals process would take six to eight weeks after the hearing
• Nova Scotia (internal appeal): this can be completed within 90 days, but may take considerably longer

What plaintiff’s counsel should do now

Given these timelines, the single most important early step is filing a WCB benefits claim within the limitation period, even while pursuing civil litigation. In BC, for example, that window is one year under s. 55 of BC’s WCA. If the civil action is later statute-barred through a section 257 determination, the WCB claim remains available. Waiting to see how the civil action unfolds before filing can permanently close that door.

Additionally, if defence counsel brings a section 257 application, plaintiff’s counsel should complete examination for discovery before the WCAT submissions deadline. This is because discovery evidence can be submitted directly to WCAT and form the basis of its findings.

Workers’ Compensation Appeal Tribunal: when the appeal is over

Workers’ compensation and civil litigation are not always either/or, but the line between them can shift quickly once a section 257 application, or its provincial equivalent, is on the table. The dual test is the hinge: if both parts are satisfied, the civil action is gone; if either part fails, the door to court stays open.

Much like the historic trade-off that built the workers’ compensation system in the first place, the outcome depends entirely on which side of the line the facts fall on, and whether the appellant’s counsel is ready to argue both sides of it.

Bookmark Canadian Lawyer’s Personal Injury page for more articles, such as those covering the appeals process with the Workers’ Compensation Appeal Tribunal.