Practice Manual Chapter 5

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5.00 DISPOSITION OF APPEALS OR APPLICATIONS

5.10 Preliminary Decisions

Preliminary decisions deal with procedures or issues in the processing of an appeal but do not directly determine the issues on appeal. Preliminary decisions may be rendered in a formal decision format under an assigned Tribunal number. If numbered, the decision is assigned the extension code "PAD". They may also be rendered by letter without an assigned appeal number. Preliminary decisions may be issued by the Registrar or the appeal commissioner(s) to whom the appeal has been assigned. Examples of issues dealt with in preliminary decisions include:

• extension or denial of the time limit within which to appeal to the Tribunal
• whether an issue is within the Tribunal's jurisdiction
• consolidating or joining appeals
• granting extensions or postponements for the filing of written submissions or the holding of oral hearings
• exclusion of witnesses
• relevancy of evidence
• issuing a summons to require a witness to attend a hearing
• exclusion of documents or other evidence
• orders to produce documents or evidence
• determination of the participants to an appeal
• how the appeal should proceed (written submissions or oral hearing)
• whether the appeal should be referred to the Chair of the Board of Directors [s.247(1)]
• whether an appeal raises the same issue(s) as an appeal postponed or adjourned under s.247 or s.248
• whether an interim award is appropriate while a matter is postponed or adjourned under s.247 or s.248
• whether expert advice should be sought [s.254]
• in s.29 applications, whether a Board claim file(s) should be considered part of the record before the Tribunal
• in s.29 applications, the admissibility of discovery transcripts and court documents
• in certain circumstances, whether an employer is an assessed employer under the Act

5.20 Appeal Decisions and Decisions under s.29 of the Act

An appeal decision is a final disposition of the issues on appeal from the hearing officer's decision. An appeal decision follows a standard format and is assigned an appeal number with the extension code "AD". A decision disposing of an application under s.29 of the Act is assigned a "TPA" extension code.

5.30 Referral Back to the Hearing Officer

A referral to the hearing officer under s.251(1) is assigned an "RTH" extension code. The decision to refer a matter back is not a final ruling on the merits of the issues on appeal, but it ends the appeal before the Tribunal. However, a further appeal of the hearing officer's reconsideration decision receives priority to the other appeals that were started after the date of the referral back to the hearing officer [s.251(2)]. Referrals are made to the hearing officer who decided the issues on appeal to the Tribunal or to another hearing officer if necessary.

A decision which refers a matter back to the hearing officer may also dispose of one or more issues on appeal, in that case, the decision is assigned an "AD-RTH" extension code.

5.40 Postponement of Appeals

Generally appeals before the Tribunal are not postponed in anticipation of legislative changes, Board decisions or decisions from the Nova Scotia Court of Appeal. However, a participant in an appeal may request that an appeal be postponed. The Tribunal will determine whether or not to grant the postponement in the circumstances.

5.41 Referral to the Chair of the Board of Directors

When the Tribunal believes that an appeal raises an issue of law and general policy that should be reviewed by the Board of Directors, the appeal is postponed or adjourned while the appeal is referred to the Chair [s.247(1)].

All appeals before the Tribunal that raise the same issue or issues will be postponed or adjourned pursuant to s.247(3). Participants will be advised in writing of the decision of the Tribunal to stay their appeal. Appeals that have been postponed or adjourned will not be adjourned for more than 3 months in most cases. In exceptional circumstances the postponement or adjournment could last up to 12 months [s. 250]. The Tribunal may make an interim award while the matter is postponed or adjourned [s.247(4)]. Where the Chair of the Board of Directors is of the opinion that an appeal raises an issue of law and general policy that should be reviewed pursuant to s.183 of the Act, the Chair may postpone or adjourn an appeal before the Tribunal and direct that it be reviewed by the Board of Directors. All appeals that raise the same issue or issues are postponed or adjourned. The postponement or adjournment should not last longer than 12 months and ends the day the Board issues a policy or notifies the Tribunal that the Board will not be issuing a policy [s.250].

5.50 Deadlines for Issuing Decisions

There are no deadlines for rendering preliminary decisions. The Tribunal has 60 days to issue an appeal decision [s.246(3)].The time period for issuing an appeal decision or a referral to the hearing officer begins upon completion of an oral hearing or the date on which all submissions have been received by the Tribunal. The deadline may be extended in exceptional circumstances by virtue of s.240(2), if, in the opinion of the Tribunal, an injustice would result if the decision were rendered within 60 days.

5.60 Contents of Decisions

Section 252A requires the Tribunal to issue a decision that clearly states the determination of the Tribunal and the reasons for the determination. The reasons are to be stated as briefly as possible without undue elaboration.

5.61 Decision Outcomes

In deciding an appeal, the Tribunal may confirm, vary or reverse the decision of the hearing officer s.252(1)].The Tribunal's decisions do not use these terms but the terms "allowed", "allowed -in-part", and "denied" correspond to the statutory terms as follows:

Denied:

On every issue addressed in the decision, the Tribunal agreed with the determinations made by the hearing officer, though not necessarily with the reasons for the determination. In essence, the hearing officer's decision was confirmed.

Allowed-in-part:

On one or more issues addressed in the decision, the Tribunal has reached a conclusion which differed from the hearing officer's determination, with the result that the hearing officer's decision is varied. However, the participant bringing the appeal was not granted the exact relief sought.

Allowed:

The Tribunal disagreed with the determinations made by the hearing officer on the issue(s) appealed to the Tribunal. The hearing officer's decision was reversed and the participant bringing the appeal was granted the specific relief sought.

5.70 Correcting Decisions

The Tribunal may, upon the request of a participant, or on its own initiative, issue a decision to correct a typographical or clerical error contained in a decision already released by the Tribunal [s. 252(3)]. This may be done where the text of the decision does not accurately reflect the intent of the decision-maker(s). However, a correcting decision cannot be used to reconsider a decision. The correction will be issued in a standard format referred to as a correcting decision, with a "COR" extension code.

5.80 Withdrawals

A participant who has appealed to the Tribunal may withdraw the appeal at any time before the appeal is decided.