The Alberta Appeals Commission for Worker’s Compensation is a tribunal that hears appeals from decisions made by the Worker’s Compensation Board (WCB). In Alberta the scheme for worker’s compensation is governed by the terms of the Worker’s Compensation Act RSA c. W- 15 and WCB policies that amplify the provisions of the Act. The WCB makes many decisions every day with regard to the management of claims involving injured workers. Anyone who has a direct interest in a claim for compensation can request that any decision relating to the claim made by a WCB claims adjudicator be reviewed internally by the WCB. The decision will be referred for review to the internal Dispute Resolution and Decision Review Body (DRDRB).
The Office of the Appeals Advisor is a free service funded by the Accident Fund, which also funds the WCB. The Office of the Appeals Advisor is however completely independent of the WCB and is available to assist injured workers with their claims.Anyone with a direct interest in the claim can then appeal decisions of the DRDRB to the Appeals Commission. Those with a direct interest in the claim are typically the injured worker or the date of accident employer. The WCB may also appear at Appeals Commission hearings and will usually do so when an appeal includes argument concerning the application and interpretation of legislation and WCB policy.
A rationale often quoted for the existence of tribunals like the Appeals Commission is the provision of a speedier and cheaper procedure, as tribunals avoid the formality of the ordinary courts. Less formality supports the idea, in theory, that parties should be able to represent themselves without hiring representatives, legal or otherwise, to advocate for them.
Figures published in the Appeals Commission Annual Report for 2015 show that for the year 2013-2104, 14% of parties before the Appeals Commission were unrepresented, 43% were represented by the Office of the Appeals Advisor and 43% by other representation. For the year 2014-2015, 8% of parties were unrepresented, 51% were represented by the Office of the Appeals Advisor and 41% by other representation. The numbers therefore demonstrate that the great majority of parties appearing before the Appeals Commission do secure some form of representation, either from the Office of the Appeals Advisor or another representative.
The Office of the Appeals Advisor is a free service funded by the Accident Fund, which also funds the WCB. The Office of the Appeals Advisor is however completely independent of the WCB and is available to assist injured workers with their claims. The Office of the Appeals Advisor is not available for assistance to employers who may wish to contest WCB decisions. Parties at the Appeals Commission can also be represented by lawyers and non-legal agents.
The decision in Yuill raises some questions as to the extent of the obligations of a tribunal towards a self-represented party and what constitutes legal advice as opposed to information. Even though the number of self-represented parties at the Appeals Commission is relatively small, processing the appeals of those who are self-represented can be more labour intensive than dealing with parties who are represented. The most difficult areas in assisting self-represented parties tend to be associated with the procedures of the Appeals Commission. Without representation, parties will rely upon the good offices of the Appeals Commission administrative personnel to guide them through the appeals process. Assistance is provided although the time required to work with an unrepresented party can sometimes be significant. In a very small number of cases, lines have to be drawn with regard to the amount of time provided because the demands become too great. Matters can become problematic for example, when a party does not understand that an appeal on one issue does not automatically involve the entire WCB file being reviewed, or when a party wants to file multiple documents, many of which are not relevant to the issue under appeal.
With regard to the hearing of the appeal, the same procedural issues often have to be explained again to the self-represented party by the hearing chair. However, in my opinion, the Appeals Commission adjudicators are sufficiently experienced and skilled so that the fact that a party is self-represented does not impact the provision of a fair hearing. Adjudicators are familiar with the applicable legislation and policy and will ask appropriate questions and seek relevant information, even if the party does not adequately address the required information for the issue of appeal.
However, some caution is required when adjudicating cases with self-represented parties, as demonstrated in the recent case of Malton v Attia, 2016 ABCA 130. Mr. Malton and his wife sued a lawyer, Mr. Attia for negligence after he represented them in a trial. The Maltons represented themselves at the hearing against Mr. Attia. The trial judge found that Mr. Attia was negligent. Mr. Attia appealed on the basis that the trial was procedurally unfair. The Court of Appeal agreed with Mr. Attia and found that the trial judge had gone beyond assisting the self-represented Maltons by descending into the arena and acting more as their advocate. The Alberta Court of Appeal acknowledged the difficulties in assisting non-represented parties at trial but stated that “… at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.” It ruled that the trial judge based her conclusions on an alternative scenario of liability and damages that she developed as opposed to the allegations in the pleadings.
Without representation, parties will rely upon the good offices of the Appeals Commission administrative personnel to guide them through the appeals process.The scenario presented in the Malton case is perhaps even more cautionary in tribunal hearings such as those conducted by the Appeals Commission where the hearing may only involve one self-represented party in attendance. Even though the other party (often the employer) does not attend the hearing, the hearing panel must still exercise caution in the assistance provided to the self-represented party. In the absence of an opposing party, it may be easier to unwittingly assist the self-represented party. However, the employer is still a party to the appeal and upon receiving a decision, can request a transcript of the hearing and appeal the decision.
The Appeals Commission provides written decisions following all hearings. It is at this point that Commission administrative and legal staff can again spend time with unrepresented parties in explaining next steps, even though all decisions issued by the Commission include additional instructions regarding further review and appeal options. The obligation to provide information regarding further review and appeal was commented upon by Martin J. in the Court of Queen’s Bench in the case of Yuill v. Worker’s Compensation Appeals Commission 2016 ABQB, 369. The comments raise some interesting questions about the extent to which a tribunal has an obligation to advise self-represented parties of their rights of appeal.
The Appeals Commission provides written decisions following all hearings. It is at this point that Commission administrative and legal staff can again spend time with unrepresented parties in explaining next steps, ..Ms. Yuill wished to seek judicial review of an Appeals Commission decision. Her employer did not participate in the Appeals Commission hearing, but under the terms of the legislation was still a party to the proceedings. Ms. Yuill did not serve her employer with notice of the application for judicial review within six months from the date of the Appeals Commission decision as required by the legislation. Ms. Yuill only served notice on the WCB and the Appeals Commission. In the Court of Queen’s Bench decision, Justice Martin expressed concern that, although the WCB had provided written information to Ms. Yuill about the appeal process, the information did not state that the employer had to be served. The WCB argued that such information would constitute legal advice. Justice Martin disagreed and stated that providing the information about service would be more like providing information that would make the process run smoothly. He was very specific in stating that informing a self-represented litigant of the requirement to serve an employer was reasonable. Justice Martin ruled that the fact that Ms. Yuill had not served the employer with notice of the appeal meant that she could not proceed.
The decision in Yuill raises some questions as to the extent of the obligations of a tribunal towards a self-represented party and what constitutes legal advice as opposed to information. For in-house legal counsel at the WCB and the Appeals Commission, it may be contrary to professional obligations owed to their clients (the WCB and the Appeals Commission) to provide legal information to parties who are seeking to take legal action against their clients. However, administrative staff at the WCB and the Appeals Commission do not have the same restraints and arguably could provide more information about procedural requirements on appeal and other issues. It remains to be seen whether the courts will elaborate in future cases about placing increased obligation on tribunals and administrative agencies to assist self-represented parties.
Less formality supports the idea, in theory, that parties should be able to represent themselves without hiring representatives, legal or otherwise, to advocate for them. As a result of the assistance available to injured workers through the Office of the Appeals Advisor and the assistance available for both injured workers and employers from other agents, there are relatively few self-represented parties appearing at the Appeals Commission. Those that choose to self-represent do require more administrative assistance from the Commission and in a small number of cases the demands can become unrealistic. As the number of self-represented parties increase in all forums it is likely there will be more court decisions addressing appropriate procedures and conduct towards self-represented parties.
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