Document name

Appeals – Charter and Constitutional Issues

Document number

POL 02/2026

Constitution of Canada (the Constitution) is set out in the provisions of the Constitutional Act, 1982 (Constitution Act), and under Section 52 is “the supreme law of Canada.” This means that any law in Canada that is inconsistent with the Constitution is void from the time it is enacted.

Canadian Charter of Rights and Freedoms (the Charter) is included in Part I of the Constitution Act. The purpose of the Charter is to guarantee the rights and freedoms included in it, subject only to restrictions that would be considered reasonable for a democratic society to function properly.

Genuine Charter/Constitutional Issues are those that raise a legitimate Charter/Constitutional question, as to whether a specific WCB policy or section of The Workers’ Compensation Act, 2013 (the Act) discriminates against a worker or employer based on disability, race, sex, etc. A further example would be the guaranteed protection of aboriginal rights under Section 35 of the Constitution Act (e.g., hunting, fishing, tax exemptions for reserves). However, if a worker or employer states, for example, in a written appeal request that their Charter/Constitutional rights have been violated because their claim for benefits was rejected, this would not be considered a genuine Charter/Constitutional issue.

1. The Workers’ Compensation Board (WCB) has exclusive jurisdiction to determine all matters and questions arising under The Workers’ Compensation Act, 2013 (the Act) (Section 20(1)).
2. The actions and proceedings of the WCB are final and conclusive (Section 20(3)).
3. The decisions and conclusions of the WCB under the Act on all matters of fact and law are final and cannot be challenged or reviewed (Section 20(4)).
4. The Supreme Court of Canada (Supreme Court) has ruled that administrative tribunals, including the WCB, have the jurisdiction to hear appeals based on the application of the Charter and/or the Constitution. However, it will not be the duty of every government official (or employee of an administrative tribunal) to hear appeals that rely on the Charter and/or Constitution, but rather those individuals with whom the legislature has endowed these powers through an enabling statute, such as the Act.
5. Because of the decisions made by the Supreme Court, the WCB establishes its authority to hear and determine appeals based on Charter and/or Constitution issues and including where appeals of this nature must be directed.

1. All bona fide Charter or Constitutional issues shall be determined exclusively by the Board Appeal Tribunal (Tribunal). As such the normal appeals process will be circumvented.
2. All workers or employers appealing a decision based upon bona fide Charter or Constitutional grounds must submit a written request including:
   1. The specific section(s) of the Charter or Constitution upon which the worker or employer is basing their appeal,
   2. Specifically, how the worker or employer believes their Charter or Constitutional rights have been infringed upon, and
   3. The policy title and policy number, and/or the section(s) of the Act that has caused the infringement.
3. When an appeal filed by a worker or employer includes both a Charter or Constitutional issue and another appeal issue:
   1. The Charter or Constitutional issue will be referred to board services and the other appeal issue will be referred to the appeals department or assessment committee.
   2. The appeals department or assessment committee will first issue a decision on the non-Charter or non-Constitutional issue following the standard appeal process.
   3. After the appeals department or assessment committee issues its decision, board services will contact the worker or employer to confirm whether that decision resolved the Charter or Constitutional issue they raised, or if they wish to proceed with an appeal to the Tribunal.
4. When a worker or employer challenges the constitutional validity of provisions within the Act itself, the party raising the issue should provide notice of the challenge to the Attorney General of Saskatchewan and, if appropriate, the Attorney General of Canada.
   1. If the party is unable to do so, the WCB may provide notice of the challenge to the Attorney General of Saskatchewan in accordance with The Constitutional Questions Act, 2012 (CQA), and, if appropriate, the Attorney General of Canada. A copy of this notice will be provided to all parties. In accordance with section 15(3) of the CQA the notice will include:
      1. The name of the action, cause, matter, or proceeding in which the question arises, or application is made,
      2. The law or provision in question, if any,
      3. The basis for the challenge,
      4. The right or freedom alleged to be infringed or denied, if any,
      5. The day and place for the argument of the question, and
      6. The facts that will be relied on in argument.
5. Charter or Constitutional challenges to the Act are to be dealt with in the same manner as any other Charter or Constitutional challenge to WCB policies.