Practice Manual - Chapter 2

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2.00 JURISDICTION

2.10 General

Appeals under s. 243-- Any person entitled to be a participant before a Board hearing officer can appeal the decision of the hearing officer to the Tribunal [243(1)]. Only a final decision of a hearing officer, one that disposes of an appeal and is communicated in writing, can be appealed to the Tribunal.

Applications under s. 29-- The Tribunal has the exclusive jurisdiction to determine if an injured worker can sue an employer. Any party to an action may apply to the Chief Appeal Commissioner for a determination of whether or not the right of action is barred. An appeal from the Tribunal's determination can be brought to the Court of Appeal if the Tribunal is alleged to have made a jurisdictional error.

2.11 Authority

The Tribunal may confirm, vary or reverse the decision of a hearing officer [252(1)]. However, the Tribunal cannot reconsider, rescind, alter, amend or make any further order in regard to any decision that it has already rendered [252(2)]. The Tribunal has the power to correct a typographical or clerical error made in a decision that has been rendered [252(3)].

2.12 Expert Evidence

The Tribunal may obtain expert evidence on any matter raised by an appeal [s.254].

2.13 Referrals to the Hearing Officer

The Tribunal may refer an appeal back to the hearing officer who rendered the decision, or to another hearing officer, when there is new or additional evidence or other reasons that merit the referral back to the hearing officer. The hearing officer must then reconsider the decision that has been appealed to the Tribunal [s. 251(1)].

2.14 Referral to the Chair

If the Chief Appeal Commissioner or a presiding appeal commissioner believes that an appeal raises an issue of law and general policy that should be reviewed by the Board of Directors, then the appeal can be referred to the Chair of the Board of Directors. The appeal before the Tribunal is then postponed or adjourned while the appeal is reviewed by the Board of Directors. The Tribunal may make an interim award while the appeal is postponed or adjourned [s.247].

When the Tribunal refers an appeal to the Chair of the Board under s. 247(1) of the Act, the Board of Directors may adopt a policy pursuant to s. 183 of the Act [s. 249(1)]. A policy is effective immediately and is applicable to all appeals before the Tribunal, including any appeals adjourned as a result of the referral to the Chair of the Board of Directors [s. 249(2)(b)].

2.15 Stated Case

Both the Board and the Tribunal may state a case in writing for the Nova Scotia Court of Appeal on any question of law. This can be done at any time and does not have to arise in the course of deciding an appeal brought before the Tribunal [s. 206(1)].

2.16 Federally Regulated Workers

Section 4 of the Government Employees Compensation Act (GECA) provides that employees of the Government of Canada and most federal crown corporations and entities receive compensation under the provisions of the workers' compensation legislation in place in the province where they are working. In Nova Scotia, federally regulated workers and their employers have the same appeal rights as provincially regulated workers and their employers.

2.20 Regulations

The Board, with the approval of the Governor in Council, may make any regulation required to carry out the provisions of Part 1 of the Act [s. 184(1)]. The Tribunal must decide an appeal according to the provisions of the Act and the Regulations [s. 246(1)] and in addition, may, with the approval of the Governor in Council, make any regulations required to properly carry out the duties of the Tribunal as prescribed by Part II of the Act [s. 255].

The Tribunal has regulation-making power in s. 255A(1) to make any regulation, with the approval of the Governor in Council, required to establish and implement an alternative dispute-resolution procedure to deal with appeals.

2.30 Policies of the Workers' Compensation Board

Section183(1) defines "policy" as a written statement adopted by the Board of Directors and designated by the Board of Directors as a statement of policy. The Board of Directors has the power to adopt policies consistent with Part 1 of the Act and the regulations made to implement Part 1 of the Act. Once a policy has been adopted, it is binding on every officer and employee of the Board and also on the Tribunal [s. 183(5)].

However, a policy is only binding on the Tribunal if it is consistent with Part 1 of the Act and the regulations [s. 183(5A)]. The Tribunal may interpret the policy and may refuse to apply a policy on the grounds that it is inconsistent with the Act or the regulations [s. 183(7)]. If, at any point in deciding an appeal, the Tribunal determines that a policy may not be consistent with the Act or regulations, the presiding appeal commissioner(s) will notify all participants and provide an opportunity for comment on the validity of the policy.