Friday, November 24, 2006

Worker Granted Relief where Representative Fails to File WSIB Appeal within Time Limits

If you have been left high and dry by some unsavory representative and you have missed your limitation periods there have been recent developments at the Tribunal which may benefit you.

The Tribunal has allowed a reconsideration of a decision that denied the worker’s request for a time limit extension to appeal an ARO decision. The reconsideration was granted largely because of the egregious conduct of his former representatives, both of whom were fee-for-service consultants.

The second representative took 18 months to make the application for a time limit extension to the Tribunal. The Tribunal denied thsi request on the basis that poor representation is not a ground on its own to grant a time extension unless there were some other exceptional circumstances. The worker had not acted diligently in pursuing the matter, given that the time limit extension request was dated March 16, 2001 and the expired time limit was December 29, 1998.

The worker retained a lawyer and asked for a reconsideration of this decision based on an affidavit of his intent to appeal from the ARO decision within the 6 month time limit. This new evidence was found credible and a new hearing was ordered.

Based on the new information presented the Tribunal concluded that the first representative had actively misrepresented to the worker and the second representative had failed to implement the worker’s instruction to file a time extension application in a timely manner, either through her negligence or her misunderstanding.

This approach is consistent with other Tribunal decisions that found “that where a representative through active misrepresentation or some other misleading conduct has actually thwarted a worker’s efforts to pursue his or her appeal, the worker’s request for a time extension should be granted” So long as the worker acted diligently “in the context of what could be reasonably expected of an unsophisticated person with a limited education, limited understanding of the appeals process and very little ability to communicate in the English language” a extension should be given. In addition, the employer's interest must be examined and whether they would be prejudiced if the time extension were allowed. As well, the Tribunal looks at whether the case is so old that it cannot be adjudicated on its merits. Where these criteria have been met then an extension of time has been granted.

If you are in this situation be sure to contact a lawyer.

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