Document name
Appeals – Charter and Constitutional Issues
Document number
POL 05/2005

Effective date: October 1, 2005

Application: All appeals and challenges involving the Charter and/or Constitution.

Policy subject: Reconsiderations and appeals

Purpose:

To establish guidelines for responding to appeals based upon the Charter and/or Constitution.

DEFINITION

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Constitution of Canada is set out in the provisions of the Constitution 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 is included in Part I of the Constitution Act. The purpose of the Charter is to guarantee the rights and freedoms enshrined within it, subject only to restrictions that would be considered reasonable for a democratic society to function properly. For WCB purposes, the most relevant provisions of the Charter include Sections 7, which provides the right to life, liberty and security of the person, and 15, which outlines “Equality Rights” (freedom from discrimination on the basis of sex, age, disability, etc.).

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

BACKGROUND

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  1. Under Section 20(1) of The Workers’ Compensation Act, 2013 (the “Act”), the Workers’ Compensation Board (WCB) has exclusive jurisdiction to determine all matters and questions arising under the Act. Under Section 20(3), the actions and proceedings of the WCB are final and conclusive. Under Section 20(4), the decisions of the WCB under the Act upon all questions of fact and law are not open to question or review.
  2. Several decisions by the Supreme Court of Canada (Supreme Court) have ruled that administrative tribunals, including WCB, have the jurisdiction to hear appeals based on the application of the Canadian Charter of Rights and Freedoms (the “Charter”) and/or the Constitution of Canada (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 such powers through an enabling statute, such as the Act.
  3. In the wake of recent Supreme Court decisions, WCB establishes its authority to hear and determine appeals based on Charter and/or Constitution issues and the body to which appeals of this nature must be directed.

POLICY

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  1. Under Section 20 of the Act, all genuine Charter/Constitutional issues shall be determined exclusively by the Board Members.
  2. As such, procedure PRO 05/2005 will apply and the normal appeals process will be circumvented.

Policy references

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Act Sec #

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18, 20

Constitutional Act, 1982

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Amended

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01 January 2014. References updated in accordance with The Workers’ Compensation Act, 2013

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Supersedes

Section detail

n/a

Section heading

Complements

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