Practice Manual - Chapter 3

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3.00 INITIATING THE APPEAL OR APPLICATION

3.10 Who May Appeal

Any person entitled to be a participant before the hearing officer can appeal the hearing officer's decision to the Tribunal. When the hearing officer's decision deals with benefit entitlement, the worker, or the worker's employer may appeal to the Tribunal. When the decision deals with employer assessments, the employer may appeal.

3.11 Other Participants

Section 245(1)(c) makes the Board a participant in appeals before the Tribunal. In addition, the Tribunal can add any other person who has a direct and immediate interest in the matter [s. 245(1)(d)]. The Attorney General of Nova Scotia and the Attorney General of Canada may also be added as participants if the appeal deals with constitutional questions or charter arguments.

3.12 Deceased Worker

A deceased worker's dependent spouse, other dependents, or employer, may bring an appeal regarding death benefits or survivor benefits [s.60(1)]. The estate of a deceased worker has the right to initiate or continue an appeal on behalf of a deceased worker, concerning compensation up to the date of the worker's death and has the right to seek death benefits.

3.13 Corporations

If the employer is a corporation and the Board collects assessments from a director of the corporation, the director may bring an appeal to the Tribunal. Both contractors and subcontractors who are deemed liable for assessments levied against an employer, may bring an appeal to the Tribunal.

3.14 Parties to an Action

Any party to a court action (usually an injured party, a worker, the worker's employer, any other employer subject to the Act, or any employees or agents of the employer) may bring an application under s.29(1) of the Act, to determine if the right of action is barred.

3.20 How to Appeal

An appeal to the Tribunal may be started by filing a Notice of Appeal form or any other written notice that contains substantially all of the elements of the Tribunal's Notice of Appeal form. The Notice of Appeal form may be downloaded from this website. The completed Notice of Appeal form or written letter of appeal may be delivered to the Tribunal by mail or fax.

Any notice of an appeal must:

• be made in writing or in another form acceptable to the Tribunal
• identify the hearing officer's decision being appealed and attach a copy of the decision
• state why the decision is incorrect and should be changed
• state the outcome requested
• be signed by the person making the appeal, or an authorized representative
• be copied to the other participants
• be received by the Tribunal within 30 days from the date notification of the hearing officer's decision is received, and
• indicate if the appeal is ready to proceed

Telephone notice of an intent to appeal is sufficient to meet the 30 day time limit. After phoning the Tribunal, a written notice of appeal must be filed as soon as possible. If written notice of the appeal is not filed, the appeal will be deemed to have been abandoned.

3.21 Extension of Time to File an Appeal

If the hearing officer's decision is mailed, receipt within 5 business days is assumed [s.189(1)]. If the 30-day time limit to appeal to the Tribunal is missed, a written request to the Registrar for an extension is necessary. The Registrar can extend the 30-day time limit when an injustice would result if the deadline is not extended [s.240(2)]. Requests must be made at the earliest opportunity and must include the reasons for missing the deadline. The request should also include any other supporting information and a completed Notice of Appeal form.

Persons entitled to participate in the appeal will be given an opportunity to respond to the request before the Registrar decides if the extension will be granted. The decision of the Registrar regarding the extension will be communicated in writing to the person who made the request and to those persons entitled to participate in the appeal. In determining whether an injustice would result if the time limit is not extended, the Registrar may consider many factors, including:

• evidence of an intention to appeal within the 30-day time limit
• the length of delay in filing the appeal
• prejudice to the person requesting the extension if it is not granted
• prejudice to other potential participants if the request is granted
• events which prevented the filing of the appeal within the 30-day limit (for example, delayed receipt of the hearing officer's decision)

3.30 Notice of Constitutional Questions or Charter Arguments

If an appeal raises a question about the constitutional validity or applicability of legislation, a regulation or a by-law, or a violation of the Canadian Charter of Rights and Freedoms, notice must be given to the Attorney General of Nova Scotia. [Section 10 of the Constitutional Questions Act, R.S.N.S., c.89, s.1(as amended)].

Notice to the Attorney General of Nova Scotia may de delivered to William Wilson, Q.C., Executive Director of Legal Services, Department of Justice (NS), 4 Floor, 5151 Terminal Road, Halifax, Nova Scotia, B3J 2L6.

If the challenge is to federal legislation, notice must also be given to the Attorney General of Canada. Notice to the Attorney General of Canada may be delivered to Michael Donovan, Q.C., Department of Justice (Canada), Duke Tower, 1400-5251 Duke Street, Halifax, Nova Scotia, B3J 1P3.

Notice must also be given to the other participants to the appeal and to the Tribunal as soon as possible. Notice can be given at the same time that notice of the appeal is filed with the Tribunal.

The Attorney General of Canada and the Attorney General of Nova Scotia are entitled to file evidence and make submissions to the Tribunal on the constitutional question or charter argument.

3.40 Application to Determine if a Right of Action Against an Employer is Barred

Section 29 of the Act allows any party to an action to apply to the Chief Appeal Commissioner to determine whether a right of action is barred by s.28(1) of the Act. The Section 29 Application form may be downloaded from this website. Applications must be made to the Chief Appeal Commissioner and should include the following:

• copies of all pleadings in the action and in any other action arising out of the same set of facts
• if not in the pleadings, a brief statement of the facts giving rise to the action
• the remedy or remedies sought (for example, a finding that the action is barred for one or more parties to the application)
• notice of any workers' compensation claim which is related to the cause of action
• information concerning whether a potential participant is an assessed employer under the Act
• a list of any potential respondents or participants in the application, including any representatives for the respondents or participants
• the residency of any potential participant to the application
• the trial date(s) for the action if known
• an indication as to how the application should proceed (either by way of oral hearing or by written submission)
• the likelihood of an agreed statement of facts; and
• the likelihood that legislation other than the Act may be considered in the application

Completion of the Tribunal's Section 29 Application form will generally satisfy the requirements for initiating an application under s. 29 of the Act. The completed form or a written letter of application may be hand delivered to the Tribunal or sent by mail or by fax.

All documentation and information contained in the application should be provided to the Tribunal, the Board, and all potential participants (including a worker's employer). Parties other than those named in the application may assert that they have an interest in the application and may ask the Tribunal for a ruling on their participation. The Tribunal will determine if they have an interest which entitles them to participate. The Tribunal may also advise other interested parties of the application.