RULES OF PRACTICE AND PROCEDURE
August 20, 2015
INDEX
PART 1
INTRODUCTION ............................................................................................................ 1
PART 2
GENERAL RULES ........................................................................................................... 2
Rule 1
How the Rules are Applied ........................................................................................................................ 2
Applying the Rules........................................................................................................................................... 2
Conflict with the Act ........................................................................................................................................ 2
Rule 2
Consequences of Not Following the Rules............................................................................................. 3
Effect of not following the Rules ........................................................................................................................ 3
If there are technical defects ............................................................................................................................... 3
Rule 3
Communicating with the Tribunal ........................................................................................................... 3
Rule 4
Representation before the Tribunal ......................................................................................................... 3
How a party may be represented before the Tribunal ......................................................................................... 3
Withdrawal of lawyer or agent .......................................................................................................................... 3
Rule 5
Case Management Powers of the Tribunal ............................................................................................. 3
Rule 6
Address for Delivery ................................................................................................................................... 4
Address for delivery of notices and documents .................................................................................................... 4
Change of address............................................................................................................................................. 5
Rule 7
The Appeal Panel ........................................................................................................................................ 5
Power of a panel ............................................................................................................................................... 5
Rule 8
Form of Proceedings .................................................................................................................................. 5
Written submission only proceeding ................................................................................................................... 5
Other forms of proceedings ................................................................................................................................ 5
Interpreters at a teleconference call or in-person hearing ...................................................................................... 5
Rule 9
Protection of Privacy and Use of Documents........................................................................................ 5
Disclosure of Documents................................................................................................................................... 5
Social Insurance Number ................................................................................................................................. 5
Redactions........................................................................................................................................................ 6
Publication of decisions ..................................................................................................................................... 6
Use of documents and information .................................................................................................................... 6
Rule 10
Notice of Constitutional Question ........................................................................................................... 6
Rule 11
Compelling Witnesses and Ordering Disclosure ................................................................................... 6
Tribunal may compel participation and order disclosure..................................................................................... 6
Applying to compel participation and order disclosure........................................................................................ 6
Serving the order and witness fees and expenses ................................................................................................. 7
Rule 12
Adjournments .............................................................................................................................................. 7
Adjourning a Hearing ..................................................................................................................................... 7
Applying for an adjournment............................................................................................................................ 7
Rule 13
Settlement ..................................................................................................................................................... 7
Rule 14
Decisions and Orders ................................................................................................................................. 8
Decisions and Orders ....................................................................................................................................... 8
Amending a final decision ................................................................................................................................ 8
Rule 15
Filing Documents with the Tribunal ........................................................................................................ 8
Tribunal file number ........................................................................................................................................ 8
How to file documents with the Tribunal .......................................................................................................... 8
Confirmation of receipt of documents ................................................................................................................. 9
Multiple copies ................................................................................................................................................. 9
Requirements for documents .............................................................................................................................. 9
Documents in a language other than English .................................................................................................. 10
Electronic recordings ....................................................................................................................................... 10
Time for filing ................................................................................................................................................ 10
If the day for filing falls on a day that is not a business day ............................................................................. 10
Rule 16
Delivery of documents by the Tribunal ................................................................................................. 10
Rule 17
The Parties .................................................................................................................................................. 11
PART 3
Rule 18
APPEALS .......................................................................................................................... 11
Filing an Appeal of a Determination...................................................................................................... 11
Time limit for filing an appeal ........................................................................................................................ 11
Grounds for appeal ........................................................................................................................................ 11
How to appeal ............................................................................................................................................... 11
Amending, altering, or adding to an appeal .................................................................................................... 12
Rule 19
The Director’s Record .............................................................................................................................. 12
Rule 20
Tribunal Review of the Appeal ............................................................................................................... 12
If an appeal filed within the appeal period does not meet requirements ............................................................. 12
Rule 21
Appeal Period Extension ......................................................................................................................... 13
Requirements for requesting an extension of the appeal period pursuant to section 109(1)(b) of the Act ........... 13
Notifying the parties of the request to extend appeal period .............................................................................. 13
Responding to the request to extend the appeal period ...................................................................................... 13
Final Reply.................................................................................................................................................... 13
Appeal Period Extension Decision................................................................................................................. 14
Rule 22
Appeal Acknowledgement ....................................................................................................................... 14
Disclosure of the Director’s Record to the Appellant ....................................................................................... 14
Objections to the completeness of the Director’s Record..................................................................................... 14
Appeal assignment ......................................................................................................................................... 14
Rule 23
Appeal Proceeding .................................................................................................................................... 14
Disclosure of the Record.................................................................................................................................. 15
Rule 24
Responding to an Appeal ......................................................................................................................... 15
How to respond to an appeal .......................................................................................................................... 15
Requirements for responding to an appeal ....................................................................................................... 15
Requesting an extension of the time to respond to an appeal ............................................................................ 15
Tribunal will assess the response to the appeal................................................................................................. 15
If a response does not meet requirements .......................................................................................................... 15
Rule 25
Final Reply on an Appeal ......................................................................................................................... 16
Rule 26
The Appeal Decision ................................................................................................................................ 16
PART 4
Rule 27
APPLICATION FOR RECONSIDERATION ...............................................................16
Filing an Application for Reconsideration ............................................................................................ 16
Time limit for applying for reconsideration ...................................................................................................... 16
How to make an application for reconsideration .............................................................................................. 16
Rule 28
Reconsideration Period Extension ......................................................................................................... 17
Requirements for requesting an extension of the reconsideration period pursuant to section 109(1)(b) of the Act17
Notifying the parties of the request to extend the reconsideration period ............................................................ 17
Responding to the request to extend the reconsideration period ......................................................................... 17
Final Reply.................................................................................................................................................... 17
Reconsideration Period Extension Decision .................................................................................................... 17
Rule 29
Tribunal Review of the Application for Reconsideration................................................................... 17
If an application for reconsideration does not meet requirements ....................................................................... 17
Rule 30
Application for Reconsideration Acknowledgement .......................................................................... 18
Reconsideration assignment ............................................................................................................................. 18
Rule 31
Application for Reconsideration Proceeding ........................................................................................ 18
Rule 32
Responding to an Application for Reconsideration ............................................................................ 18
How to respond to an application for reconsideration ....................................................................................... 18
Extending the time to respond to an application for reconsideration ................................................................. 19
Requirements for responding to an application for reconsideration .................................................................... 19
Tribunal will assess the reconsideration response .............................................................................................. 19
If a reconsideration response does not meet requirements................................................................................... 19
Rule 33
Final reply on an Application for Reconsideration .............................................................................. 19
Rule 34
The Reconsideration Decision ................................................................................................................ 19
PART 5
Rule 35
SUSPENDING A DETERMINATION ......................................................................... 20
Request to Suspend a Determination..................................................................................................... 20
Requirements for a request to suspend a determination .................................................................................... 20
Notice of suspension request............................................................................................................................ 20
Suspension decision......................................................................................................................................... 20
RULES OF PRACTICE AND PROCEDURE
PART 1
INTRODUCTION
These Rules of Practice and Procedure (the “Rules”) are made pursuant to section 103 of the Employment
Standards Act (the “Act”) and section 11 of the Administrative Tribunals Act.
Documents contained in an appeal or application for reconsideration file may be disclosed to members of the
public in certain circumstances. These circumstances include:
(a)
at a hearing;
(b)
upon publication of a Tribunal decision;
(c)
as part of the judicial review process;
(d)
a successful application under the Freedom of Information and Protection of Privacy Act
(“FOIPPA”).
PURPOSE
The purpose of these Rules is to facilitate the adjudication of appeals of Determinations issued by the
Director of Employment Standards and applications for reconsideration of Tribunal decisions in a fair,
efficient, and just manner.
The Tribunal will adjudicate a case in ways that are proportionate to the importance and complexity of the
issues while ensuring that it is dealt with fairly and expeditiously.
The provisions of these Rules are subject to any directions that the Tribunal may make in any particular case.
DEFINITIONS
In these rules:
“Act” means the Employment Standards Act, RSBC 1996 Chapter 113 (as amended);
“address for delivery” means a current postal address or, if allowed by the Tribunal, a fax number or e-mail
address;
“appeal” means an appeal filed under section 112 of the Act, and includes an amended appeal;
“appeal period” is described in section 112(3) of the Act, as (a) 30 days after the date of service of the
determination if the appellant was served by registered mail; or (b) 21 days after the date of service of the
determination if the appellant was served in person or served under section 122(3) of the Act;
“appellant” means a person served with a Determination who files an appeal with the Tribunal, and includes
a business corporation, partnership, limited liability partnership, limited partnership or any other incorporated
or unincorporated organization;
“applicant” means a person who files an application for reconsideration, or another application, with the
Tribunal, and includes a business corporation, partnership, limited liability partnership, limited partnership or
any other incorporated or unincorporated organization;
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 1
“business day” means 8:30 am to 4:30 pm Monday through Friday, excluding statutory holidays;
“decision” means an order, direction, or other decision made by the Tribunal;
“determination” means any decision made by the Director under section 30(2), 66, 68(3), 73, 76(3), 79, 100
or 119 of the Act;
“Director” means the Director of Employment Standards appointed under the Public Service Act and, in
relation to a function, duty or power that the Director has under section 117 of this Act delegated to another
person, “Director” includes that other person;
“document” means anything on which information is recorded or stored whether on paper or in electronic
format;
“file” means effective delivery of a document to the Tribunal;
“member” means a person appointed to the Tribunal under section 102 of the Act;
“panel” means one, three, or five members of the Tribunal that have been authorized to determine appeals
and applications for reconsideration made to the Tribunal;
“party” means an appellant, an applicant, a respondent, the Director, and any other person or group allowed
by the Tribunal to participate in an appeal or application for reconsideration;
“reconsideration” means an application filed under section 116 of the Act;
“Regulation ” means the Employment Standards Regulation;
“submissions” mean any documents or information filed by a party with the Tribunal for consideration in
an appeal or application for reconsideration;
“Tribunal” means the Employment Standards Tribunal established under Part 12 of the Act, and includes a
member of the Tribunal.
PART 2
GENERAL RULES
Rule 1
How the Rules are Applied
Applying the Rules
(1)
These Rules of Practice and Procedure, as amended on August 20, 2015 (the “Rules”), supersede all
previous Rules. The Rules come into effect on August 20, 2015, and apply to all proceedings
regardless of when those proceedings were commenced.
(2)
These Rules apply to all parties and, unless the Tribunal decides otherwise, all parties must comply
with these Rules.
Conflict with the Act
(3)
If any of these Rules conflict with the Act, the Act will apply.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 2
Rule 2
Consequences of Not Following the Rules
Effect of not following the Rules
(1)
If a party does not follow these Rules, a decision, order, or any direction regarding procedure, the
Tribunal may take such action it considers appropriate, including:
(a)
requiring that the failure be remedied;
(b)
scheduling a hearing;
(c)
making a decision based on the information it has, with or without giving the parties an
opportunity to make submissions;
(d)
waiving the non-compliance;
(e)
adjourning or dismissing the appeal or the application for reconsideration.
If there are technical defects
(2)
The Tribunal may waive a technical defect or irregularity in an appeal or in an application for
reconsideration and consider the appeal or application for reconsideration as valid.
Rule 3
Communicating with the Tribunal
(1)
Written communications with the Tribunal must be addressed to the Registrar unless otherwise
specified.
(2)
A party’s submission in the Tribunal process must not be abusive or disrespectful.
Rule 4
Representation before the Tribunal
How a party may be represented before the Tribunal
(1)
A party to an application may be self-represented or may be represented by a lawyer or an agent and
may make submissions as to facts, law, and jurisdiction.
(2)
If a party appoints a representative, that party (or the representative if the representative is a lawyer)
must notify the Tribunal of the appointment in writing.
Withdrawal of lawyer or agent
(3)
A party must immediately notify the Tribunal in writing if the party’s lawyer or agent withdraws or
ceases to represent the party.
Rule 5
Case Management Powers of the Tribunal
(1)
Subject to the provisions of the Act and any other applicable enactment, the Tribunal may regulate its
own procedures.
(2)
The Tribunal will determine how a matter will be dealt with.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 3
(3)
At any time, the Tribunal may issue instructions with respect to an appeal or an application for
reconsideration.
(4)
Without restricting the powers in paragraphs (1), (2), and (3), the Tribunal may, to assist in the timely
resolution of matters before it,
(a)
publish information sheets to assist the parties in using these Rules;
(b)
waive or amend any of these Rules;
(c)
determine the form of any hearing;
(d)
shorten or lengthen any time limit in these Rules;
(e)
consolidate appeals or applications for reconsideration;
(f)
direct that appeals or applications for reconsiderations be heard separately;
(g)
stay proceedings;
(h)
adjourn or postpone a hearing;
(i)
define, narrow, or broaden the issues in order to decide the appeal or application for
reconsideration;
(j)
deal with an issue in the appeal or application for reconsideration as a preliminary issue;
(k)
determine and disclose the order in which submissions will be accepted and disclosed;
(l)
limit, or expand, the evidence or submissions on any issue;
(m)
make further orders as are necessary to give effect to an order or direction under these
Rules;
(n)
attach terms or conditions to any order or direction;
(o)
make orders or give directions as are necessary to prevent abuse of its processes;
(p)
take any action the Tribunal considers appropriate in all the circumstances.
Rule 6
Address for Delivery
Address for delivery of notices and documents
(1)
Every party must provide written notice to the Tribunal of their address for delivery.
(2)
If a lawyer or agent represents a party, the lawyer or agent must provide written notice to the
Tribunal of their address for delivery.
(3)
Subject to paragraph (4), if a party provides the Tribunal with a fax number or e-mail address that
party must accept delivery of documents by that method.
(4)
If a party informs the Tribunal that a fax number or e-mail address should not be used to provide
documents to that party, that form of communication must not subsequently be used by that party.
(5)
The Tribunal will use the address provided by a party or a representative as the address to which
documents should be sent or delivered unless notified in writing of an alternate address for delivery.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 4
Change of address
(6)
A party or a party’s lawyer or agent must immediately provide written notice to the Tribunal of a
change in their address for delivery.
Rule 7
(1)
The Appeal Panel
The Appeal Panel consists of one, three, or five members of the Tribunal. An appeal or application
for reconsideration will usually be heard by one member.
Power of a panel
(2)
The panel hearing the appeal will decide how the hearing is to be conducted and may receive and
accept evidence and information that it considers necessary and appropriate, whether or not that
evidence or information is admissible in a court of law.
Rule 8
Form of Proceedings
Written submission only proceeding
(1)
The Tribunal usually decides an appeal or application for reconsideration by way of a written
submission only hearing.
Other forms of proceedings
(2)
The Tribunal may also conduct hearings in person, by telephone, or by other electronic means, or
any combination of those modes, as it considers appropriate.
(3)
If all or part of an appeal or application for reconsideration is to be decided by way of a telephone
conference call or in-person hearing, the Tribunal will set the time, date, and place or contact
information for the hearing and notify the parties.
(4)
If a party who has been notified of a hearing does not participate, the Tribunal may proceed with the
hearing and make a decision in the absence of that party.
Interpreters at a teleconference call or in-person hearing
(5)
If a party or their lawyer or agent requires an interpreter in a language other than English, that person
must notify the Tribunal at least 14 days before the date set for the telephone conference call or inperson hearing.
Rule 9
Protection of Privacy and Use of Documents
Disclosure of Documents
(1)
The Tribunal may sever information from documents it discloses, subject to natural justice and
procedural considerations.
Social Insurance Number
(2)
Parties are requested to redact instances of the Social Insurance Number contained in their
submissions.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 5
Redactions
(3)
A party must list and identify the location of any redactions made in a submission.
(4)
The Tribunal may request a party provide the Tribunal with an unredacted version of a submission.
Publication of decisions
(5)
Decisions of the Tribunal are usually published on the Tribunal’s website. They may also be
published on law-related websites and in legal publications.
Use of documents and information
(6)
A party and a party’s representatives may not use documents obtained through the Tribunal’s
proceedings for any purpose other than in the proceeding before the Tribunal, the Director on
remittal, or judicial review, unless otherwise authorized by the Tribunal or by a court.
(7)
If a party considers that the Tribunal should make an order prohibiting the disclosure of specific
documents or information, that party must provide the documents and its full submissions in
support of the order sought to the Tribunal.
Rule 10
Notice of Constitutional Question
If a constitutional question over which the Tribunal has jurisdiction is raised in an appeal or application for
reconsideration, the party who raises the question must comply with section 8 of the Constitutional Question
Act.
Rule 11
Compelling Witnesses and Ordering Disclosure
Tribunal may compel participation and order disclosure
(1)
At any time before or during an appeal or application for reconsideration, the Tribunal may make an
order requiring a person:
(a)
to participate in a telephone conference call or in-person hearing to give evidence that is
admissible and relevant to the appeal or application for reconsideration;
(b)
to produce for the Tribunal, or a party, a document or other thing in the person’s possession
or control, as specified by the Tribunal, that is admissible and relevant to an issue in the
appeal or reconsideration application.
Applying to compel participation and order disclosure
(2)
A party to an appeal or application for reconsideration may apply to the Tribunal in writing for an
order requiring a person:
(a)
to participate in a telephone conference call or in-person hearing to give evidence that is
admissible and relevant to the appeal or reconsideration application;
(b)
to produce for the Tribunal, or a party, a document or other thing in the person’s possession
or control that is, or may be, admissible and relevant in the appeal or reconsideration
application.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 6
(3)
(4)
An application to the Tribunal to require a person to participate or to produce documents must
include:
(a)
the name and address of that person;
(b)
an outline of the information or evidence that person will present;
(c)
a list of the particular documents or other things that person must produce;
(d)
the reasons why the person should participate or produce documents;
(e)
an outline of any efforts made to have the person voluntarily participate or produce
documents.
The Tribunal will advise the party in writing whether or not the application is granted.
Serving the order and witness fees and expenses
(5)
The party who applies for an order for a person to attend or produce a document must serve the
order on the person named by leaving the order with that person or by leaving it at the person’s usual
residence at least 5 business days before the date the person is required to appear or produce a
document; and
(6)
The party who applies for an order for a person to attend or produce a document must pay any
witness fees and expenses as directed by the Tribunal.
Rule 12
Adjournments
Adjourning a Hearing
(1)
The Tribunal may adjourn a hearing at any time.
Applying for an adjournment
(2)
A party may apply to the Tribunal to adjourn a hearing. An application to adjourn must:
(a)
be made in writing;
(b)
include reasons why an adjournment is necessary;
(c)
state why granting the request will not unduly prejudice the other parties; and
(d)
be filed as soon as practicable.
Rule 13
Settlement
(1)
At any time during an appeal or an application for reconsideration, the Tribunal may decide on its
own, or at the request of a party, to conduct a settlement meeting to resolve one or more issues in
dispute.
(2)
The Tribunal may appoint a member or other person to conduct a settlement meeting.
(3)
If a member conducts a settlement meeting and the appeal or application for reconsideration is not
settled, that member will not decide the merits of the appeal or the application for reconsideration
unless all parties consent in writing.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 7
(4)
Unless all parties consent, or the Tribunal or a court orders otherwise, a person must not disclose or
be compelled to disclose to any other person any documents produced or statements made during a
settlement meeting.
Rule 14
Decisions and Orders
Decisions and Orders
(1)
The Tribunal may make a decision or order orally or in writing.
(2)
A decision or order of a panel, or a majority of a panel, is considered a decision or order of the
Tribunal.
(3)
A member of a panel who dissents from the majority’s decision may issue written reasons but these
reasons do not constitute a decision of the Tribunal.
Amending a final decision
(4)
(5)
A party may apply, or the Tribunal may decide on its own, to amend a final decision to correct any of
the following:
(a)
a clerical or typographical error;
(b)
an accidental or inadvertent error, omission, or other similar mistake; or
(c)
an obvious arithmetical computation error.
Unless the Tribunal decides otherwise, an amendment will not be made more than 30 days after all
parties have been served with the final decision.
Rule 15
Filing Documents with the Tribunal
Tribunal file number
(1)
The Tribunal will assign a file number to every appeal and application for reconsideration. A party
must include this file number on all documents filed with the Tribunal after the number has been
assigned.
How to file documents with the Tribunal
(2)
(3)
A party or any other person must include the following information when filing any document with
the Tribunal:
(a)
name of the appellant/applicant and respondent in the appeal or reconsideration;
(b)
name of the person filing the document and, if applicable, his/her representative’s name;
(c)
mailing address, telephone number and, if available, e-mail address and facsimile number of
the person filing the document or his/her representative; and
(d)
Tribunal file number, if available.
A party may file documents with the Tribunal by mail, fax, hand, e-mail, or as directed by the
Tribunal. If requested, a party must provide the original document to the Tribunal.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 8
Filing by mail
(a)
A party may file documents with the Tribunal by pre-paid post. The post-marked date is the
date used to determine the date the document is received by the Tribunal.
Filing by hand or by courier
(b)
A party may deliver documents to the Tribunal’s office located at Suite 650, 1066 West
Hastings Street, Vancouver, BC, on a business day.
Filing by fax
(c)
A party may file up to 50 pages of documents with the Tribunal by fax. If there are more
than 50 pages, a party may file by fax only if the party first receives permission from the
Tribunal. The Tribunal’s fax number is 604-775-3372.
Filing by e-mail
(d)
A party may file up to 50 pages of documents with the Tribunal by e-mail. The Tribunal’s email address is [email protected]. If there are more than 50 pages, a party may file by email only if the party first receives permission from the Tribunal.
(e)
The e-mail message must contain the name, telephone number, and e-mail address of the
sender.
(f)
Correspondence and documents may be sent as either text in the body of the e-mail, or as
attachments subject to subsections (d) and (j).
(g)
Documents required to be in a form designated by the Tribunal must be sent in that form as
attachments.
(h)
Attachments must be sent in a format supported by the software used by the Tribunal.
Please contact the Tribunal for the format or formats which may be used in sending
attachments to the Tribunal.
(i)
An attachment sent to the Tribunal in an inappropriate format will be treated as not having
been received by the Tribunal.
(j)
The total size of the e-mail must not exceed 9.5 megabytes (MB).
(k)
Where the e-mail is regarding an appeal or application for reconsideration that is under
consideration by the Tribunal, the subject line of the e-mail should contain the Tribunal file
number.
Confirmation of receipt of documents
(4)
It is a party’s responsibility to confirm with the Tribunal that the Tribunal has received the filed
documents by the filing deadline.
Multiple copies
(5)
A party may be required to provide multiple copies of a document if that party’s documents are in
excess of 50 pages.
Requirements for documents
(6)
Documents filed with the Tribunal must be legible.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 9
(7)
Documents must be on standard letter-size paper (8½” x 11”). If the documents to be filed are not
on standard, letter-sized paper a party must contact the Tribunal in advance of filing to request
permission to file the documents.
Documents in a language other than English
(8)
If a party files a document in a language other than English, the party must include a certified English
translation by an accredited professional translator. The translator’s professional qualifications must
be set out in a separate attachment.
Electronic recordings
(9)
If a party files an electronic recording with the Tribunal, the party may be required to provide a
certified transcription of the recording.
Time for filing
(10)
A party may file a document with the Tribunal during a business day. If the Tribunal receives a
document outside of a business day, it will consider the document to be filed on the next business
day.
(11)
Unless otherwise specified, when a date is given for serving of a document or for doing some other
act, the complete document, including those transmitted via fax or e-mail, must be received by the
Tribunal or the relevant party by 4:30 pm on that date. Any document or part of a document
received after 4:30 pm will be deemed to have been filed on the next business day.
(12)
Where an action is required to be done within a specified number of days, the days are counted by
excluding the first day and including the last day.
If the day for filing falls on a day that is not a business day
(13)
If the deadline for filing a document with the Tribunal falls on a day that is not a business day, the
party may file the document on the next business day.
Rule 16
Delivery of documents by the Tribunal
(1)
The Tribunal may deliver a document to a party or other person by mail, fax, hand, courier, process
server, or e-mail.
(2)
If the Tribunal delivers a document by mail, the document is considered to be delivered five days
after it was mailed, unless that day is not a business day of the Tribunal, in which case the document
is considered to be delivered the next business day.
(3)
If the Tribunal delivers a document by fax or e-mail, the document is considered to be delivered on
the day after it was sent unless that day is not a business day of the Tribunal, in which case the
document is considered to be delivered the next business day.
(4)
If a party wishes to establish that, through absence, accident, illness, or other cause beyond its
control, it did not receive a document by the deemed date of delivery, it must notify the Tribunal as
soon as practicable, then provide its submission and supporting evidence by the deadline set out by
the Tribunal.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 10
Rule 17
(1)
(2)
The Parties
The following persons are parties to an appeal or application for reconsideration:
(a)
the appellant / the applicant;
(b)
the respondent(s); and
(c)
the Director.
The Tribunal may direct that any other person or group who may be affected by an appeal or
application for reconsideration be added as a party, in which case the Tribunal will specify the terms
and conditions of their participation in the proceeding.
PART 3
APPEALS
Rule 18
Filing an Appeal of a Determination
Time limit for filing an appeal
(1)
An appellant must file an Appeal within a time limit called the “appeal period”, described in section
112(3) of the Act as follows:
(a)
30 days after the date of service of the determination if the person was served by registered
mail; and
(b)
21 days after the date of service of the determination if the person was personally served or
served under section 122(3).
Grounds for appeal
(2)
An appellant may appeal the determination to the Tribunal on one or more of the following grounds:
(a)
the director erred in law;
(b)
the director failed to observe the principles of natural justice in making the determination;
(c)
evidence has become available that was not available at the time the determination was being
made.
How to appeal
(3)
To appeal a determination, an appellant must do all of the following within the appeal period
described in section 112(3) of the Act:
(a)
complete an Appeal Form (Form 1 – see Appendix to these Rules);
(b)
deliver the completed Appeal Form along with any attachments to the Tribunal within the
appeal period;
(c)
deliver a complete copy of the determination and a complete copy of the written reasons for
the determination to the Tribunal within the appeal period; and
(d)
confirm that a copy of the Appeal Form has been delivered to the Director.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 11
Amending, altering, or adding to an appeal
(4)
If, pursuant to Section 86(1) of the Act, the Director varies the determination after an appellant has
filed an appeal, the appellant may amend the appeal.
(5)
To amend an appeal, the appellant must, within 30 days of being served with the varied
determination if the appellant was served by registered mail or within 21 days after the date of service
of the varied determination if the appellant was served in person or served under section 122(3) of
the Act:
(a) file the varied determination with the Tribunal;
(6)
(b)
file an amended appeal in writing to the Tribunal; and
(c)
confirm with the Tribunal that a copy of the amended Appeal Form has been delivered to
the Director.
A party cannot reserve a right to amend, alter or add to an appeal where the Director has not varied
the determination after the appellant has filed an appeal. Any application for permission to amend
must be made before the deadline for responses to the appeal and must be accompanied by a draft of
the amended appeal which makes clear the precise amendments for which permission is sought.
Rule 19
The Director’s Record
(1)
The Director must, as required by section 112(5) of the Act, provide the Tribunal with a complete
copy of the Record that was before the Director at the time the determination was made. The
Tribunal may request the Director provide further copies of the Record.
(2)
The Record must be provided by the deadline set by the Tribunal.
(3)
The Record must be page numbered and be organized chronologically with the submissions made by
the employer and the complainant identified.
(4)
The Director must advise the Tribunal whether or not the submissions in the Record were disclosed
to the other parties prior to the issuance of the Determination.
(5)
The Director is requested to redact instances of the Social Insurance Number contained in the
Record from the copy of the Record provided to the Tribunal. The Director must list and identify
the location of any redactions made in the Record. The Tribunal may request the original
un-redacted document be provided to the Tribunal.
Rule 20
(1)
Tribunal Review of the Appeal
After the Tribunal has received an appeal, it will review the appeal and determine whether it is
complete and meets the filing requirements of section 112 of the Act and these Rules.
If an appeal filed within the appeal period does not meet requirements
(2)
If an appeal filed within the appeal period does not meet all the requirements as set out in Rule 18(3)
or 18(5) and section 112 of the Act, the Tribunal may:
(a)
notify the appellant that the appeal must be completed within the appeal period before it will
be accepted; and
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 12
(b)
set out the time limits, within the appeal period, for the appellant to complete the appeal and
comply with any other directions.
(3)
If an appellant files the completed appeal within the time set out, the Tribunal will treat the appeal as
timely.
(4)
If the appellant’s appeal is not completed or is not filed within the time set out, the Tribunal may
decline to proceed with the appeal. If the Tribunal declines to proceed with the appeal, it will notify
the appellant in writing.
(5)
If an appellant’s appeal is completed and filed outside the appeal period, the Tribunal will request the
appellant provide reasons for filing a late appeal under Rule 21(2).
Rule 21
Appeal Period Extension
Requirements for requesting an extension of the appeal period pursuant to section 109(1)(b) of the
Act
(1)
An application for an extension of time for filing an appeal, pursuant to section 109(1)(b) of the Act,
will not be considered until the requirements of Rule 18(3), and where appropriate Rule 18(5), have
been met.
(2)
The written request to extend the appeal period should include, at a minimum,
(a)
A completed Appeal Form
(b)
A reasonable and credible explanation for the extension sought if the request is being made
before the appeal period has expired or a reasonable and credible explanation for failing to
request an appeal within the statutory limit if the appellant has filed the appeal after the
appeal period;
(c)
Submissions on the appeal in sufficient detail to allow the Tribunal to determine whether the
appeal, on its face, is meritorious.
Notifying the parties of the request to extend appeal period
(3)
The Tribunal may notify the other parties of the request to extend the appeal period.
(4)
The Tribunal may request a response from the respondent and the Director to the appeal period
extension request.
Responding to the request to extend the appeal period
(5)
If a response is requested from a party the response must be made to the Tribunal in writing by the
requested deadline.
Final Reply
(6)
If a response was received from any of the other parties, the Appellant will be given the opportunity
to file a reply within a time limit.
(7)
The reply must be made to the Tribunal in writing by the deadline set by the Tribunal.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 13
Appeal Period Extension Decision
(8)
The Tribunal will advise the parties in writing of its decision to either deny the request or extend the
appeal period and allow the appeal to proceed on its merits.
(9)
The decision will be published in print and posted on the Tribunal’s website.
Rule 22
(1)
(2)
Appeal Acknowledgement
Once the Tribunal has assessed the documents the Tribunal will notify the other parties of the appeal
in written correspondence which:
(a)
acknowledges that the Tribunal has received the appeal;
(b)
provides the Director and the respondent(s) with a copy of the Appeal Form and any
document filed with the appeal; and
(c)
requests the Director provide the Tribunal with a complete copy of the Record that was
before the Director at the time the determination was made.
The Tribunal will provide the Appellant with a copy of the letter delivered to the Director and the
respondent(s).
Disclosure of the Director’s Record to the Appellant
(3)
The Tribunal will provide a copy of the Director’s Record to the Appellant and request that the
Appellant provide any objections to the completeness of the Record. The Appellant’s response must
be:
(a)
submitted to the Tribunal in writing; and
(b)
be filed with the Tribunal within the allowed time.
Objections to the completeness of the Director’s Record
(4)
The Tribunal will disclose the Appellant’s objections to the completeness of the Record, if any, to the
Director and request the Director provide a response to the objections. The Director’s response
must be:
(a)
submitted to the Tribunal in writing; and
(b)
be filed with the Tribunal within the allowed time.
Appeal assignment
(5)
A Tribunal Member will review the appeal. The Tribunal Member, without seeking submissions
from the parties, may dismiss all or part of the appeal and/or confirm all or part of the
Determination.
(6)
If all or part of the appeal is dismissed the Tribunal will issue a decision.
Rule 23
(1)
Appeal Proceeding
If the appeal is not dismissed the Tribunal will send a letter to the Director and the respondent(s)
which:
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 14
(2)
(a)
acknowledges that the appeal will be proceeding; and
(b)
invites the Director and the respondent(s) to respond to the merits of the appeal within a
time limit.
The Tribunal will provide the Appellant with a copy of the letter delivered to the Director and the
respondent(s).
Disclosure of the Record
(3)
The Tribunal may provide a copy of the Record received from the Director, a content list of the
Record, or make the Record available for personal inspection to the other parties.
(4)
If the Tribunal makes a copy of the Record available for inspection, it will notify all parties of the
location of the Record and the time during which it may be inspected.
(5)
If a party has been provided a content list of the Record, the party may request a copy of any part of
the Record or the entire Record from the Tribunal.
Rule 24
Responding to an Appeal
How to respond to an appeal
(1)
To respond to an appeal, the respondent(s) and the Director must:
(a)
make a response in writing; and
(b)
file the response with the Tribunal within the allowed time.
Requirements for responding to an appeal
(2)
A response must contain:
(a)
the party’s full name and address for delivery;
(b)
the Tribunal file number; and
(c)
a detailed submission in response to the appeal including copies of all relevant documents.
Requesting an extension of the time to respond to an appeal
(3)
A request for an extension of time to file a response must be made in writing to the Tribunal and in
advance of the allowed deadline to respond.
(4)
The Tribunal may canvass the other parties to ascertain their position on the request prior to
granting or denying an extension.
Tribunal will assess the response to the appeal
(5)
When the Tribunal receives a response, it will review the response, decide whether it is complete, and
decide whether it meets the filing requirements of these Rules.
If a response does not meet requirements
(6)
If a response does not meet the filing requirements, the Tribunal may:
(a)
notify the party that the response must be corrected before it will be accepted; and
(b)
set out the time limit for the party to correct the response and follow any other directions.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 15
(7)
If a party’s response is not corrected or is not filed within the time set out the Tribunal may hear and
decide the appeal without considering the response.
Rule 25
Final Reply on an Appeal
(1)
The Tribunal may provide a copy of all responses to all other parties and permit the Appellant to file
a final reply within a time limit.
(2)
If the Appellant does not file a final reply within the time limit that party may not later file a final
reply without the prior permission of the Tribunal. The Tribunal will grant permission only in
exceptional circumstances.
Rule 26
(1)
The Appeal Decision
After considering whether the grounds for appeal have been met, the Tribunal may, by order,
(a)
confirm, vary or cancel the determination under appeal, or
(b)
refer the matter back to the Director.
(2)
The Tribunal will issue written reasons for decision and will provide a copy of its decision to all
parties of record.
(3)
The decision may be published in accordance with Rule 9(5).
PART 4
APPLICATION FOR RECONSIDERATION
Rule 27
Filing an Application for Reconsideration
(1)
The Tribunal may reconsider any order or decision it makes. The Tribunal may decide on its own to
reconsider an order or decision, or it may do so on the request of the Director or a person served
with an order or a decision of the tribunal.
Time limit for applying for reconsideration
(2)
The applicant should deliver the application for reconsideration as soon as possible after the Tribunal
decision, but in any event within 30 days after the date of the Tribunal order or decision.
How to make an application for reconsideration
(3)
To apply for a reconsideration of a decision or order of the Tribunal, an applicant must:
(a)
complete a Reconsideration Application Form (Form 2 – see Appendix at the end of these
Rules); and
(b)
deliver the completed Reconsideration Application Form along with any supporting
documents to the Tribunal.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 16
Rule 28
Reconsideration Period Extension
Requirements for requesting an extension of the reconsideration period pursuant to section 109(1)(b)
of the Act
(1)
The written request to extend the reconsideration period should include, at a minimum,
(a)
A completed Reconsideration Application Form
(b)
A reasonable and credible explanation for the extension sought if the request is being made
before the statutory reconsideration period has expired or a reasonable and credible
explanation for failing to request a reconsideration within the statutory limit if the appellant
has filed the request after the reconsideration period;
(c)
Submissions on the reconsideration in sufficient detail to allow the Tribunal to determine
whether the reconsideration request, on its face, is meritorious.
Notifying the parties of the request to extend the reconsideration period
(2)
The Tribunal may notify the other parties of the request to extend the reconsideration period.
(3)
The Tribunal may request a response from the respondent and the Director to the request to extend
the reconsideration period.
Responding to the request to extend the reconsideration period
(4)
If the Tribunal requests a response from a party, the response must be made to the Tribunal in
writing by the requested deadline.
Final Reply
(5)
If a response was received from any of the other parties, the Applicant will be given the opportunity
to file a reply within a time limit.
(6)
The reply must be made to the Tribunal in writing by the deadline set by the Tribunal.
Reconsideration Period Extension Decision
(7)
The Tribunal will advise the parties in writing of its decision to either deny the request or to extend
the reconsideration period and allow the reconsideration request to proceed on its merits.
(8)
The decision will be published in print and posted on the Tribunal’s website.
Rule 29
(1)
Tribunal Review of the Application for Reconsideration
When the Tribunal receives an application for reconsideration, it will review the application and
determine whether it meets the filing requirements of section 116 of the Act and these Rules.
If an application for reconsideration does not meet requirements
(2)
If the application for reconsideration does not meet all the requirements as set out in Rule 27(3) and
section 116 of the Act, the Tribunal may:
(a)
notify the applicant that the application must be corrected before it will be accepted; and
(b)
set out the time limits for the applicant to correct the application and comply with any other
directions.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 17
(3)
If an applicant files the corrected application within the time set out, the Tribunal will treat the
application as though it had been filed on the day it was originally received.
(4)
If the application is not corrected or is not filed within the time set out, the Tribunal may be unable
to proceed with the application. If the Tribunal is unable to proceed with the application, it will
notify the applicant in writing.
Rule 30
Application for Reconsideration Acknowledgement
(1)
Once the Tribunal has reviewed the application for reconsideration the Tribunal will notify the other
parties of the application for reconsideration.
(2)
The Tribunal may provide the other parties with a copy of:
(3)
(a)
the Reconsideration Application Form; and
(b)
any document filed with the reconsideration application.
The Tribunal will provide the Applicant with a copy of the letter delivered to the Director and the
respondent(s).
Reconsideration assignment
(4)
A Tribunal Member will assess the application for reconsideration. The Tribunal Member, without
seeking submissions from the parties, may dismiss all or part of the application for reconsideration.
(5)
If all or part of the application for reconsideration is dismissed the Tribunal will issue a decision.
Rule 31
(1)
(2)
Application for Reconsideration Proceeding
If the application for reconsideration is not dismissed the Tribunal will send a letter to the Director
and the respondent(s) which:
(a)
acknowledges that the application for reconsideration will be proceeding;
(b)
invites the Director and the respondent(s) to respond to the application for reconsideration
within a time limit.
The Tribunal will provide the Applicant with a copy of the letter delivered to the Director and the
respondent(s).
Rule 32
Responding to an Application for Reconsideration
How to respond to an application for reconsideration
(1)
To respond to an application for reconsideration, a party must:
(a)
set out in writing its full submission in response to the application; and
(b)
file the written response with the Tribunal within the allowed time.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 18
Extending the time to respond to an application for reconsideration
(2)
A request for an extension of time to file a response to an application for reconsideration must be
made in writing to the Tribunal and in advance of the allowed deadline to respond.
(3)
The Tribunal may canvass the other parties to ascertain their position on the request prior to
granting or denying an extension.
Requirements for responding to an application for reconsideration
(4)
A response must contain:
(a)
the party’s full name and address for delivery;
(b)
the Tribunal file number; and
(c)
a detailed submission in response to the reconsideration application.
Tribunal will assess the reconsideration response
(5)
When the Tribunal receives a response, it will review the response, decide whether it is complete, and
decide whether it meets the filing requirements of these Rules.
If a reconsideration response does not meet requirements
(6)
(7)
If a response does not meet all the filing requirements, the Tribunal will:
(a)
notify the party that the response must be corrected before it will be accepted; and
(b)
set out the time limit for the party to correct the response and follow any other directions.
If the party’s response is not corrected or is not filed within the allowed time, the Tribunal may
proceed to consider the application for reconsideration without considering the response.
Rule 33
Final reply on an Application for Reconsideration
(1)
The Tribunal may provide a copy of all responses to the other parties and will permit the Applicant
to file a final reply within a time limit.
(2)
If the Applicant fails to file a final reply within the time allowed, that party may not later file a final
reply without the Tribunal’s prior permission. The Tribunal will grant permission only in exceptional
circumstances.
Rule 34
The Reconsideration Decision
(1)
The Tribunal may, by order, confirm, vary or cancel the order or decision or refer the matter back to
the original panel or another panel.
(2)
The Tribunal will advise the parties in writing of its decision.
(3)
The decision will be published in print and may be posted on the Tribunal’s website in accordance
with Rule 9(5).
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 19
PART 5
SUSPENDING A DETERMINATION
Rule 35
Request to Suspend a Determination
Requirements for a request to suspend a determination
(1)
In order to request a suspension under section 113 of the Act an appellant or applicant must, in
writing, at the same time as filing the appeal or application for reconsideration:
(a)
state the reasons for the request to suspend the determination;
(b)
state the amount to be deposited with the Director; and
(c)
if that amount is less than the amount required to be paid by the Director, state the reasons
why depositing a lesser amount would be adequate in the circumstances.
Notice of suspension request
(2)
The Tribunal may notify the other parties of the request to suspend the determination and set a time
limit for responding to the request.
Suspension decision
(3)
If the request is not otherwise resolved, the Tribunal will advise the parties in writing of its decision
on the request.
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
Page | 20
APPENDIX: Forms
Form 1 – Appeal Form and Guide to the Appeal Form
Form 2 – Reconsideration Application Form and Guide to the Reconsideration Application Form
Employment Standards Tribunal
Rules of Practice and Procedure (August 20, 2015)
APPEAL FORM
(Form 1)
This Appeal Form, along with the required attachments, must be delivered to the Employment
Standards Tribunal within the appeal period. See Rule 18(3) of the Tribunal’s Rules of Practice &
Procedure (the “Rules ”). Please read the Guide to the Appeal Form before completing this form.
The Guide explains what you need to write in each section of the Appeal Form.
1.
Company/Organization/Individual named in the Determination (“Appellant”):
Name
Address
Postal Code
Phone
Fax
Do you consent to receive documents via e-mail?
2.

Yes, my e-mail address is

No, I prefer to receive a paper copy only
c/o Applicant’s lawyer or agent (if applicable):
Name
Address
Postal Code
Phone
Fax
Do you consent to receive documents via e-mail?
3.

Yes, my e-mail address is

No, I prefer to receive a paper copy only
State your grounds for appeal. [See Section 112(1) of the Employment Standards Act]

The Director of Employment Standards erred in law.

The Director of Employment Standards failed to observe the principles of natural justice in making the
Determination.

Evidence has become available that was not available at the time the Determination was being made.
4.
Provide your reasons and argument for appeal on a separate sheet of paper. Attach any
supporting documents. The reasons, argument, and supporting documents should be received by the
Tribunal within the appeal period.
5.
What do you want the Tribunal to do about the Determination?

Change or vary it? How?

Cancel it?

Refer it back to the Director of Employment Standards?
August 20, 2015
Page 1 of 2
APPEAL FORM
(Form 1)
6.
This is a request for an extension to the appeal period.
[See Rule 21 of the Tribunal’s Rules ]
If you are filing your appeal before the appeal period has expired, please provide, on a separate sheet of
paper, a reasonable and credible explanation for the extension sought.
If you are filing your appeal after the appeal period has expired, please provide, on a separate sheet of paper,
a reasonable and credible explanation for failing to request an appeal within the statutory limit.
7.
Submit the following documents to the Tribunal within the appeal period.
[by mail to Suite 650, 1066 West Hastings Street, Vancouver, BC V6E 3X1,
or by e-mail to [email protected], or by fax to 604-775-3372]

Completed and signed Appeal Form (Form 1) (2 pages)

Written reasons and argument supporting each of your grounds of appeal

A complete copy of the Determination

The written reasons for the Determination

Attach any documents that support your appeal

Written reasons for your request for an extension to the appeal period (if applicable)
The Tribunal may require you to provide multiple copies of your appeal submission if it is
longer than 50 pages. [See Rule 15(5) of the Tribunal’s Rules]
8.
I confirm I have delivered a copy of this Appeal Form (Form 1) to the Director of
Employment Standards.
[by mail to PO Box 9570 Stn Prov Govt, Victoria BC V8W 9K1 or by fax at 250-356-1886,
in accordance with Section 112(2)(b) of the Employment Standards Act.]
9.
Sign and date this Appeal Form (Form 1).
Print Name: __________________________________
Signature:
___________________________________
Date:
______________________
If you are submitting this appeal on behalf of an organization what is your
relationship to the organization (for example, director, officer, manager): ________________________________
August 20, 2015
Page 2 of 2
Guide to the Appeal Form
The purpose of the Guide to the Employment Standards Tribunal Appeal Form (the “Guide”) is to provide you, as an appellant, with
information to assist you in properly preparing and completing your appeal of a determination issued by the Director of
Employment Standards (the “Director”). More specifically, this Guide will help you complete your Appeal Form and will provide
information about filing supporting submissions and documents with the Employment Standards Tribunal (“Tribunal”).
The Guide is not a substitute for, nor does it replace, the requirements of the Employment Standards Act, the Administrative Tribunals
Act, the Employment Standards Regulation or the Tribunal’s Rules of Practice and Procedure. You may wish to separately review these
documents; they may be accessed through the Tribunal’s website. The Guide is not binding on individual Tribunal Members.
The Guide is not meant to provide you with any legal advice.
For your ease of use, the Guide will explain, in numbered paragraphs, below, corresponding to the numbered paragraphs in the
Appeal Form, the information required of you as an appellant as well as other things you should consider when preparing your
appeal and Appeal Form for submission to the Tribunal.
1.
Company/Organization/Individual named in the determination (“Appellant”)
Appellant means a person who files an appeal with the Tribunal, and includes, an incorporated company, an
unincorporated business, an organization, an association or a partnership.
It is important to note that, under the Employment Standards Act a person served with a determination may appeal the
determination. It may be that you are an individual served with a determination of the Director arising out of your
complaint against your existing or former employer. Alternatively, you may be a director or officer of an incorporated
company or an association or an owner or principal of an unincorporated business that is the subject of the Director’s
determination.
Name of the Appellant
Although the Director’s determination you are appealing may have already identified you (and other parties) by your
proper name, it bears repeating that if you are an individual appealing a determination, make sure you use your full legal
name. Initials are not enough:
Say: John Herbert Smith
Not: J.H Smith
If you are an individual known more commonly by another name, you should point out both your legal and the other
name you are known by:
For example: John Herbert Smith also known as Herbie Smith
If the appellant is a company incorporated in British Columbia, use the legal name of the company registered with the
Corporate Registry:
For example: ABC Ltd.
Not: ABC
Sometimes, the incorporated company is doing business under a different business name in which case you should
disclose both the legal name, as well as the name under which the company operates its business:
For example: 123456 B.C. Inc. doing business as ABC Manufacturing
Not: ABC Manufacturing
Address of the Appellant
The appellant, whether an individual or not, should provide their current address for delivery on the Appeal Form so that
the Tribunal can use the address for delivering notices and documents in the appeal proceedings.
August 20, 2015
Page 1 of 7
It is very important that the address for delivery provided to the Tribunal is both accurate and current. If the address
changes at any time during the appeal proceedings, after the Appeal Form is filed, it is the appellant’s responsibility to
immediately inform the Tribunal, in writing, of the change and provide the new address for delivery.
If the appellant is an incorporated company, its business address may not be the same as its address for its registered and
records office. The appellant may choose the address it wants to use on the Appeal Form for the purpose of
communicating with the Tribunal. It may be the company’s business address, the registered and records office address or
another address. Similarly, an appellant who is an individual may choose the address he or she wants to use on the Appeal
Form for communicating with the Tribunal.
Telephone number
The appellant must provide the Tribunal with a current telephone number on the Appeal Form so as to allow the Tribunal
to contact the appellant, if necessary. As with the appellant’s address, if the telephone number of the appellant changes
after the Appeal Form is filed, it is the appellant’s responsibility to advise the Tribunal in writing of a new telephone
number.
Fax number and e-mail address
If the appellant provides the Tribunal with a fax number, the Tribunal may deliver notices and documents to the appellant
by fax.
Alternatively, if the appellant provides the Tribunal with an e-mail address and indicates a preference for communicating
with the Tribunal via e-mail then the Tribunal will use the appellant’s e-mail address to communicate with the appellant and
deliver any notices and documents.
Where the appellant does not provide an e-mail address or a fax number on the Appeal Form, the Tribunal, as a default
option, will communicate with the appellant via mail at the address provided by the appellant on the Appeal Form.
Delivery of documents by the Tribunal
If the Tribunal delivers a document by mail, the document is considered to be delivered five (5) days after it was mailed,
unless that day is not a business day of the Tribunal, in which case the document is considered to be delivered the next
business day.
If the Tribunal delivers a document by fax or e-mail, the document is considered to be delivered on the day after it was
sent unless that day is not a business day of the Tribunal, in which case the document is considered to be delivered the
next business day.
2.
Appellant’s lawyer or agent (if applicable)
Although in most cases an appellant is self-represented, an appellant may choose to be represented by a lawyer or an agent.
An agent is simply a person who is authorized to act on behalf of another person.
Where the appellant authorizes a lawyer or agent to act on his or her behalf, the lawyer’s or agent’s name, address, e-mail
address, telephone number and fax number must be set out on the Appeal Form.
As with self-represented appellants, where a lawyer or an agent representing an appellant provides the Tribunal with a fax
number, the Tribunal may deliver notices and documents by fax.
Where a lawyer or an agent provides the Tribunal with an e-mail address and indicates a preference for communication
with the Tribunal via e-mail then the Tribunal will use the e-mail address to communicate with the appellant’s lawyer or
agent.
The same rules with respect to deemed delivery set out in paragraph 1 above (see heading Delivery of documents by the
Tribunal) will apply where the appellant has a lawyer or an agent.
It is the appellant’s obligation to immediately notify the Tribunal in writing if his or her lawyer or agent withdraws or
ceases to represent him or her.
3.
State your grounds for appeal (See Section 112(1) of the Employment Standards Act).
An appeal is not a second chance for you to re-argue your case before the Tribunal just because you do not like the
decision contained in the determination or because the Director preferred the evidence of the opposing party. You must
have a sound legal basis for appealing a determination.
August 20, 2015
Page 2 of 7
The Employment Standards Act sets out very specific and limited grounds or reasons for appealing a determination. You may only
appeal a determination in three situations, namely: (i) where the Director made an error in law in making the
determination; (ii) where the Director failed to observe the principles of natural justice in making the determination; or (iii)
where new evidence has become available that was not available when the determination was being made by the Director.
Do not simply check-off all three (3) grounds of appeal in the Appeal Form indiscriminately; it is important to understand
what each of these grounds or reasons for appeal mean, if you are to properly submit your appeal based on one or more of
them.
What does error of law mean?
Error of law in the appeal context includes a circumstance where the Director, in making the Determination, (i) did not
apply the law correctly or misinterpreted or misapplied the applicable law; (ii) misapplied an applicable principle of general
law; (iii) acted without any evidence; (iv) acted on a view of facts which could not reasonably be entertained; or (v) adopted
a method of assessment which is fundamentally wrong.
A few examples of errors of law are set out, below:
Example: The Director dismissed the employee’s claim for overtime work simply because he or she failed to write
down overtime hours in a daily planner at the time when he or she worked overtime. Currently, there is no
statutory obligation on an employee to record his or her hours of work in writing anywhere as a precondition to
advancing a claim for overtime wages. The obligation to record the employee’s hours of work is on the employer.
In this example, the Director’s decision is based on an incorrect application of the law.
Example: Where the Director applied the wrong analysis or test for determining if a person is an employee or an
independent contractor, the Director may have committed an error of law.
Example: Where the Director awarded wages to an employee who is excluded from the application of the
Employment Standards Act (for instance, an architect, lawyer, chiropractor, chartered accountant, etc. set out in s.31
of the Employment Standards Regulation), the Director will have erred in law.
Example: Where the Director awarded overtime pay to an employee who is a Manager as defined in the Employment
Standards Regulation, the Director will have erred in law (because Managers are excluded from the overtime
provisions of the Employment Standards Act by virtue of section 32 of the Employment Standards Regulation).
Example: If, despite no evidence that the employee worked on specific days or, alternatively, despite overwhelming
evidence that the employee did not work on certain days, the Director made a finding of fact that the employee
worked on those days and awarded him or her wages, the Director may have made an error of law because he acted
without any evidence or on a view of facts which could not reasonably be entertained.
What does breach of natural justice principles mean?
The principles of natural justice refer to fundamental rules of fairness that govern or apply in the adjudication of disputes
between parties. In the case of an investigation and adjudication of a complaint by the Director, natural justice requires
that the parties involved in the dispute have an opportunity to hear about the case against them, to present their evidence
and arguments, to be heard by an independent and impartial decision-maker and to have their dispute decided by the
decision-maker who actually heard the parties’ evidence and argument.
It is important to note that parties do not have a right to an oral hearing of a complaint before the Director (or for that
matter before the Tribunal on appeal of a determination). The Director’s delegate may, after investigating a complaint,
make a decision without an oral hearing. It is not a breach of natural justice simply because the Director or his delegate
decided the complaint without an oral hearing. It is also not a breach of natural justice for the Director or her delegate to
have preferred the evidence of your opponent over your own evidence or to have made a credibility finding against you. It
is part of the delegate’s job to make credibility findings. It is also not a breach of natural justice if you did not have a
lawyer represent you during the investigation or at a hearing of a complaint, whether or not a lawyer represents the other
party.
As with the error of law ground of appeal, an appellant claiming a breach of natural justice on the part of the Director
must provide clear evidence in support of his or her claim; a bare assertion that he or she has been denied a fair hearing is
not sufficient.
Some few examples of a breach of natural justice include the following:
Example: Where a Director’s delegate, at a hearing of the complaint, refused to allow a party to cross-examine a
witness of the other party, a breach of natural justice may have occurred.
August 20, 2015
Page 3 of 7
Example: If parties have been required, before the hearing, to make full disclosure of their evidence, a breach of
natural justice may be found if a party is allowed to present critical evidence that was not disclosed before the
hearing and the Director or her delegate relies on this evidence in making a decision.
Example: The Director or her delegate must provide adequate reasons for not accepting the evidence of a party (in
other words, the delegate cannot simply say that he or she does not believe a witness without explaining why) and a
failure to provide adequate reasons may amount to a breach of natural justice.
Example: A failure by the Director or her delegate to share with one party relevant documents obtained from
another party, or to share critical evidence verbally communicated to the delegate by the other party, may amount
to a breach of natural justice.
What does “new evidence” mean?
Where the appellant wants to submit “new evidence” on appeal, the Tribunal has established a four-part test, which the
appellant will have to satisfy before the Tribunal will accept evidence on appeal as “new evidence”.
The appellant must establish that:
(i)
the evidence could not, with the exercise of reasonable steps, have been discovered and presented to the
Director during the investigation or adjudication of the complaint and prior to the determination;
(ii)
the evidence is relevant to an important issue arising from the complaint;
(iii)
the evidence is reasonably capable of belief; and
(iv)
the evidence is sufficiently relevant or useful, in the sense that, if believed, it on its own or when considered
with other evidence, could have led the Director to a different conclusion on an important issue in the
complaint.
These four requirements are conjunctive; that is, the appellant has the burden of showing that each of them is satisfied in
relation to the evidence the appellant is asking the Tribunal to admit as “new evidence” before the Tribunal will admit and
consider it on appeal.
Some examples of where evidence may or may not be found to constitute “new evidence” on appeal include the following:
Example: New evidence will not be found to exist on appeal where the appellant fails to participate in the
investigation or a hearing of a complaint or fails to provide the Director’s delegate any evidence otherwise available
during the investigation or a hearing of a complaint.
Example: Simply seeking out more evidence to supplement what was already provided to the Director’s delegate
during the complaint process, if in the circumstances the evidence was available and could have been provided to
the delegate during the investigation or hearing of the complaint, will also not qualify as “new evidence” and the
Tribunal will not allow or consider it in the appeal.
Example: The Tribunal may consider evidence on appeal as “new evidence” where the appellant clearly establishes
that during the investigation of a complaint he asked the delegate for a reasonable extension of time to present new
evidence which was material to an issue relating to the complaint but the delegate, for some reason, failed to accept
the request.
Example: Where a party fails to provide evidence at a hearing of a complaint but offers to retrieve it and provide it
to the Director, the party will not be able to successfully introduce such evidence on appeal as “new evidence”
because it could have been introduced at the hearing of the complaint.
Example: Evidence that does not presently exist but may exist in the future will not qualify as “new evidence” in the
appeal.
Example: Where the failure to provide records or documents by the appellant during the investigation or hearing of
the complaint was due to the actions of a third party and not the fault of the appellant, the Tribunal may receive
the records or documents as new evidence.
August 20, 2015
Page 4 of 7
4.
Provide your reasons and argument for appeal on a separate sheet of paper.
Reasons, argument and supporting documents
It is very important that you, as an appellant, set out in writing your full submissions on each ground of appeal you are
raising and deliver those submissions, together with all your supporting documents, and your Appeal Form, to the
Tribunal within the “appeal period”.
Form of proceeding
While the Tribunal has the authority to hear an appeal by way of written submissions, in person hearings, hearings by
telephone or by other electronic means, the Tribunal usually proceeds by way of a written submissions only hearing.
Therefore it is especially important that the applicant file with the Tribunal full and complete written submissions along
with their Appeal Form.
Burden of proof on the appellant
As an appellant, you must prove, on a balance of probabilities, that your appeal satisfies one or more of the available grounds
of appeal, if you are to win your appeal. The “balance of probabilities” is a civil standard for assessing proof that the
Tribunal uses to assess evidence. It means that you as an appellant must convince the Tribunal that what you are saying or
asserting is more probable than not.
Supporting documents
“Supporting documents” does not mean simply copying the same documents you previously sent to the Director’s
delegate during the investigation of the complaint or produced at the hearing of the complaint before the determination
was made. You should, however, submit all of the documents that you believe support your ground(s) of appeal. If you
have “new evidence” in the form of documents that satisfies the Tribunal’s test for new evidence (see above under the
heading What does “new evidence” mean?) then you should enclose those documents with your Appeal Form, together with an
explanation why the documents qualify as “new evidence”.
5.
What do you want the Tribunal to do about the determination?
What do you want the Tribunal to do?
The Tribunal, after considering whether the appellant’s grounds of appeal have been satisfied, has the authority (under
section 115 of the Employment Standards Act) to confirm, change or cancel the determination or refer it back to the Director in its entirety
or with respect to one or more issues.
As an appellant, you must choose and indicate on the Appeal Form which one or more of these remedies you are seeking
and provide fully your explanation why you want that remedy in your submissions in support of your appeal.
6.
This is a request for an extension to the appeal period.
Appeal period
The appellant must file their appeal within the “appeal period”. Appeal period is described in section 112(3) of the
Employment Standards Act, which is: 30 days after the date of service of the determination if the appellant was served by
registered mail; or 21 days after the date of service of the determination if the appellant was served in person or served
under section 122(3) of the Employment Standards Act (electronically or by fax).
Requirement to file a written explanation for requesting an extension of the appeal period before the expiry of the appeal period
If you, as an appellant, file your appeal of a determination before the expiry of the appeal period (see heading Appeal period
above), you must, at the same time as filing the appeal, submit a written request (pursuant to section 109(1)(b) of the
Employment Standards Act), to extend the appeal period and provide a reasonable and credible explanation for the extension
sought.
The Tribunal may notify the other parties of your request to extend the appeal period and set a time limit for responding
to the request. If a response is received from the other parties you will be given the opportunity to file a reply within a
time limit.
The Tribunal will then advise the parties in writing of its decision to either deny the request and dismiss the appeal or
extend the appeal period and allow the appeal to proceed on its merits.
August 20, 2015
Page 5 of 7
However, if you fail to file a written request for an extension of the appeal period or if you provide insufficient reasons to
explain the delay in filing your appeal, then your appeal may be dismissed. Therefore, it is very important that you provide
a sufficient written explanation for the extension request with your appeal.
Requirement to file a written explanation for the delay in filing an appeal until after the expiry of the appeal period
If you, as an appellant, file your appeal of a determination after the expiry of the appeal period (see heading Appeal period
above), you must, at the same time as filing the appeal, submit a written request (pursuant to section 109(1)(b) of the
Employment Standards Act), to extend the appeal period and provide reasons why the appeal was not filed on time.
The Tribunal may notify the other parties of your request to extend the appeal period and set a time limit for responding
to the request. If a response is received from the other parties you will be given the opportunity to file a reply within a
time limit.
The Tribunal will then advise the parties in writing of its decision to either deny the request and dismiss the appeal or
extend the appeal period and allow the appeal to proceed on its merits.
However, if you fail to file a written request for an extension of the appeal period together with your reasons why your
appeal is late or if you provide insufficient reasons to explain the delay in filing your appeal, then your appeal may be
dismissed as out of time. Therefore, it is very important that you provide a sufficient written explanation with your latefiled appeal explaining why it was filed late or out of time.
What factors will the Tribunal consider in determining whether to grant or reject an extension application?
Some factors the Tribunal will consider in deciding whether to grant or deny the appellant an extension of time to appeal
include the following:
(1)
if there is a reasonable and believable explanation for the appellant’s failure to request an appeal within the
time limits;
(2)
there is not an unreasonably long delay by the appellant in filing the appeal;
(3)
there has been a genuine, and continuing, intention to appeal the determination;
(4)
the appellant has made the other parties, including the Director, aware of his or her intention to appeal
before the expiry of the appeal period;
(5)
the other party will not be unduly prejudiced if the appellant is granted an extension of time to appeal; and
(6)
the appellant, based on first or initial impressions, has a strong case that might succeed.
The Tribunal will weigh and balance these factors; that is, the appellant does not have to prove the existence of all of them
to get an extension of the appeal period. While there may be stronger evidence of one factor, and some (or no) evidence
concerning another factor, the Tribunal will weigh all the evidence in making its final decision on whether to grant or deny
an extension of an appeal period.
Some examples of where the tribunal may grant or deny an extension of the appeal period include the following:
Example: Where the Director has commenced proceedings to enforce the determination, the Tribunal may deny an
extension application for the late appeal as it may be unreasonably prejudicial to the other party if that party is
unduly delayed in collecting any wages awarded in the determination.
Example: Where the appellant fails to read or turns a blind eye to the Appeal Information in the determination
expressly setting out the deadline for filing their appeal and how and where to file the appeal, the Tribunal may not
extend the time for appeal as the appellant is required to exercise reasonable diligence in pursuing the appeal.
Example: Where the appellant, after accepting correspondence or at its last operating address before the
determination was made, refuses to accept the determination at that address and fails to provide an alternate
address to the Director when he or she knows that the determination has been issued or is due to be issued any
day, the Tribunal may not extend the appeal period.
Example: Where the appellant, due to a simple oversight, files the appeal within the appeal period with the Director
and subsequently, after the expiry of the appeal period, files the appeal with the Tribunal, the Tribunal may allow an
extension of time as the appellant in this case has shown a continuing interest to appeal before the appeal period
expired.
Example: Where the late appeal has no prospect of succeeding and merely repeats the submissions made earlier in
the investigation of the complaint, the Tribunal may not extend the appeal period.
August 20, 2015
Page 6 of 7
7.
Submit the following documents to the Tribunal
To complete and file your appeal application, you must submit by mail to the Tribunal’s office address (provided on the
Appeal Form) or by e-mail to [email protected], or by fax to 604-775-3372 your signed Appeal Form together with
your written reasons and argument in support of your grounds of appeal; a complete copy of the determination you are
appealing, including the reasons for the determination (the Director, after making a determination, usually serves both of
these documents together on all parties to the determination); your supporting documents; and your written explanation
for your late appeal application (if your appeal is late).
8.
I confirm I have delivered a copy of this Appeal Form to the Director of Employment Standards
You must deliver a copy of the Appeal Form setting out the grounds of appeal to the Director of Employment Standards.
August 20, 2015
Page 7 of 7
RECONSIDERATION APPLICATION FORM
(Form 2)
This Reconsideration Application Form, along with the required attachments, must be delivered to
the Employment Standards Tribunal. See Rule 27(3) of the Tribunal’s Rules of Practice &
Procedure (the “Rules ”). Please read the Guide to the Reconsideration Application Form before
completing this form. The Guide explains what you need to write in each section of the
Reconsideration Application Form.
1.
Company/Organization/Individual filing an application for reconsideration (“Applicant”)
Name
Address
Postal Code
Phone
Fax
Do you consent to receive documents via e-mail?
2.

Yes, my e-mail address is

No, I prefer to receive a paper copy only
c/o Applicant’s lawyer or agent (if applicable)
Name
Address
Postal Code
Phone
Fax
Do you consent to receive documents via e-mail?

Yes, my e-mail address is

No, I prefer to receive a paper copy only
3.
The Tribunal decision you want reconsidered: BC EST #
4.
State your reasons and argument for your request for reconsideration on a separate sheet of
paper. Please attach any supporting documents. The reasons, argument, and supporting documents
should be received by the Tribunal at the time of your application. [Note: You do not have to
resubmit documents previously submitted and disclosed during the appeal process; however, you may
indicate to the Tribunal the particular document you are relying on. The Tribunal Member assigned to
decide your application for reconsideration will receive all documents previously submitted and
disclosed during the appeal process.]
August 20, 2015
Decision Date:
Page 1 of 2
RECONSIDERATION APPLICATION FORM
(Form 2)
5.
What do you want the Tribunal to do about the decision? Provide your reasons on a separate
sheet of paper.

Change or vary it? Why? How?

Cancel it? Why?

Refer the matter back to the original panel or another panel? Why?
6.
I am requesting an extension to the statutory reconsideration time period.
[See Rule 28(1) of the Tribunal’s Rules ]
If the request is being made before the statutory reconsideration period has expired, provide a
reasonable and credible explanation for the extension sought.
If you are filing an application for reconsideration more than 30 days after the date of the
Tribunal’s decision, you must provide a reasonable and credible explanation for failing to
request a reconsideration within the statutory limit.
Please provide your detailed reasons for the delay on a separate sheet of paper
7.
Submit the following documents to the Tribunal within the statutory reconsideration
period.
[by mail to Suite 650, 1066 West Hastings Street, Vancouver, BC V6E 3X1,
or by e-mail to [email protected], or by fax to 604-775-3372]




8.
Completed and signed Reconsideration Application Form (Form 2) (2 pages)
Provide written reasons and argument on why your application should be allowed
Attach any documents that support your application
Provide written reasons for requesting an extension to the statutory reconsideration
period (if applicable)
Sign and date this Reconsideration Application Form (Form 2)
Print Name:
Signature:
Date:
If you are submitting this reconsideration request on behalf of an organization
what is your relationship to the organization (e.g., director, officer, manager):
August 20, 2015
Page 2 of 2
Guide to the Reconsideration Application Form
The purpose of the Guide to the Reconsideration Application Form (the “Guide”) is to provide you, as an applicant, with
information to help you properly prepare and complete your Reconsideration application and, more specifically, your
Reconsideration Application Form.
This Guide is not a substitute for, nor does it replace, the requirements of the Employment Standards Act (the “Act”), the
Administrative Tribunals Act, the Employment Standards Regulation or the Employment Standards Tribunal’s Rules of
Practice and Procedure. The Guide is not binding on Tribunal Members. The Guide is also not meant to provide you
with any legal advice.
For your ease of use, the Guide will explain, in numbered paragraphs below corresponding to the numbered
paragraphs in the Reconsideration Application Form, the information you require as an applicant and should be
mindful of when preparing your Reconsideration application and Reconsideration Application Form.
1.
Company/Organization/Individual filing an application for reconsideration
(“Applicant”)
Any person served with a decision or order of the Employment Standards Tribunal (the “Tribunal”),
including the Director of Employment Standards (the “Director”), an incorporated company, an
unincorporated business, an organization, an association, a partnership, or an individual, may file an
application for reconsideration of the order or decision (see section 116 of the Act).
You should also note that the Tribunal can decide on its own to reconsider an order or a decision of the
Tribunal in an appeal although that rarely occurs.
Name of the Applicant
Although the order or decision of the Tribunal in respect of which you are making your Reconsideration
Application already identifies you (and all other parties), it bears repeating that if you are an individual applying
for reconsideration, make sure to use your full legal name. Initials are not enough:
Say: John Herbert Smith
Not: J.H Smith
If you are an individual more commonly known by another name, you should list both your legal and the
other name you are known by:
Example: John Herbert Smith also known as Herbie Smith
If the applicant is a company incorporated in British Columbia, use the legal name of the company registered
with the Corporate Registry:
Example: ABC Ltd.
Not: ABC
Sometimes, the incorporated company conducts business under a different business name in which case you
should list both the legal name, as well as the trade name under which the company carries on business:
Example: 123456 B.C. Inc. doing business as ABC Manufacturing
Not: ABC Manufacturing
Address of the Applicant
The applicant, whether an individual or not, should provide their current address for delivery on the
Reconsideration Application Form so that the Tribunal can use this address for delivering notices and
documents in the reconsideration proceedings.
August 20, 2015
Page 1 of 6
It is very important that the address for delivery provided to the Tribunal is both accurate and current. If the
address changes at any time during the reconsideration proceedings, after the Reconsideration Application
Form is filed, the applicant must immediately inform the Tribunal, in writing, of the change and provide the
new address for delivery.
If the applicant is an incorporated company, its business address may not be the same as its registered and
records office address. The applicant must identify on the Reconsideration Application Form the address it
wishes to use for the purpose of communicating with the Tribunal. The applicant may use the company’s
business address, the registered and records office address or another address. Similarly, an applicant who is an
individual may choose the address he or she wants to use on the Reconsideration Application Form for
communicating with the Tribunal.
Telephone number
The applic a nt must provide the Tribunal with a current telephone number on the Reconsideration
Application Form so as to allow the Tribunal to contact the applicant, if necessary. As with the applicant’s
address, if the telephone number of the applicant changes after the Reconsideration Application Form is filed,
it is the applicant’s responsibility to advise the Tribunal in writing of a new telephone number.
Fax number and e-mail address
If the applicant provides the Tribunal with a fax number, the Tribunal may deliver notices and documents to
the applicant by fax.
Alternatively, if the applicant provides the Tribunal with an e-mail address and indicates a preference for
communicating with the Tribunal via e-mail then the Tribunal will use the applicant’s e-mail address to
communicate with the applicant and to deliver any notices and documents. Where the applicant does not
provide an e-mail address or a fax number on the Reconsideration Application Form, the Tribunal, as a default
option, will communicate with the applicant via mail at the address provided by the applicant on the
Reconsideration Application Form.
Delivery of documents by the Tribunal
If the Tribunal delivers a document by mail, the document is considered to be delivered five (5) days after it
was mailed, unless that day is not a business day of the Tribunal, in which case the document is considered to
be delivered the next business day.
If the Tribunal delivers a document by fax or e-mail, the document is considered to be delivered on the day
after it was sent unless that day is not a business day of the Tribunal, in which case the document is considered
to be delivered the next business day.
2.
Applicant’s lawyer or agent (if applicable)
Although in most cases an applicant is self-represented, an applicant may choose to be represented by a
lawyer or an agent. An agent is simply a person who is authorized to act on behalf of another person.
Where the applicant authorizes a lawyer or agent to act on his or her behalf in a Reconsideration application, the
lawyer’s or agent’s name, address, telephone number and fax number must be set out on the Reconsideration
Application Form.
As with self-represented applicants, where a lawyer or an agent representing an applicant provides the Tribunal
with a fax number, the Tribunal may deliver notices and documents by fax.
Where a lawyer or an agent provides the Tribunal with an e-mail address and indicates a preference for
communicating with the Tribunal via e-mail then the Tribunal will use the e-mail address to communicate with
the applicant’s lawyer or agent.
The same rules with respect to deemed delivery set out in paragraph 1 above (see heading Delivery of
documents by the Tribunal) will apply where the applicant has a lawyer or an agent.
It is the applicant’s obligation to immediately notify the Tribunal in writing if his or her lawyer or agent
withdraws or ceases to represent him or her.
August 20, 2015
Page 2 of 6
3.
The Tribunal decision you want reconsidered: BC EST #
Decision Date: _
In this part, you should set out the Tribunal’s decision you want reconsidered. The decision number is found in
the top right hand corner of the decision you want reconsidered.
4.
State your reasons and argument for your request for reconsideration on a separate
sheet of paper.
It is very important that you, as an applicant, set out in writing, your full submissions in support of your
application and deliver those submissions, along with your supporting documents, and your Reconsideration
Application Form, to the Tribunal.
5.
What do you want the Tribunal to do about the decision?
Reconsideration not an automatic right of a party
Although a person served with a Tribunal decision or order of the Tribunal may make an application for
reconsideration, the Tribunal will not automatically reconsider the decision or order in question. The decision
to reconsider is within the sole discretion of the Tribunal. It is important to note that in light of the
objectives of the Employment Standards Act, which include efficiency, fairness and finality of the Tribunal’s
decisions, the Tribunal is very cautious in exercising its discretion to reconsider an order or decision and will
only do so in exceptional circumstances.
Not a function of Reconsideration to re-weigh evidence
The Reconsideration application is not designed to allow a party dissatisfied with a Tribunal appeal decision to
reargue his or her case afresh or to repeat evidence and arguments previously made to the appeal. On a
reconsideration application, the Tribunal will not re-weigh the evidence submitted in the appeal in order to
come to a different or more favourable decision for the applicant.
When a reconsideration application may be made
A Reconsideration application may be made where the applicant can demonstrate that the Tribunal, in
its appeal decision, committed a reviewable error. Reviewable errors include a breach of the rules of natural
justice by the Tribunal or a fundamental error in law in making its decision. Reconsideration is also appropriate
where the applicant can show that there now is compelling new evidence.
For information and discussion about “natural justice”, “error of law” and “new evidence” please see the
Employment Standards Tribunal’s Guide to Appeal Form.
Reasons, argument and supporting documents
It is very important that you, as an applicant, make your full submissions in writing setting out the basis of
your Reconsideration application and that you deliver those submissions, together with all your supporting
documents and Reconsideration Application Form, to the Tribunal within the time limit specified in the
Tribunal’s Rules of Practice and Procedure (see Rule 27(2)).
“Supporting documents” does not mean copying the same documents you previously sent to the Director’s
delegate during the investigation of the complaint or produced at the hearing of the complaint before the
determination was made and perhaps resubmitted to the Tribunal in your appeal.
If you have “new evidence” in the form of documents that satisfies the Tribunal’s test for new evidence (see the
heading “What does “new evidence” mean?” in the Guide to the Appeal Form) then you should enclose those
documents with your Reconsideration Application Form, together with an explanation why the documents
qualify as “new evidence”. The same applies with “information”; it does not refer to information or
evidence that you previously provided the Director’s delegate in the investigation or hearing which the
delegate considered or to the Tribunal, which the Tribunal reviewed on the appeal.
Form of proceeding
Although the Tribunal may proceed by way of written submissions, in-person hearings, hearings by
telephone or by other electronic means, the Tribunal almost always hears a Reconsideration application by way
of a written submissions only hearing. Therefore, it is especially important that the applicant file with the
Tribunal full and complete written submissions along with their Reconsideration Application Form.
August 20, 2015
Page 3 of 6
What is the process employed by the Tribunal in deciding whether or not to exercise its reconsideration authority
The Tribunal uses a two-stage process when deciding if it should exercise its reconsideration power:
First, the Tribunal will decide whether the matters raised by the Reconsideration application justify
reconsideration. In deciding this question, the Tribunal will consider a non- exhaustive list of factors including:
•
Whether the Reconsideration application was filed in a timely fashion (Did the applicant file
the reconsideration application outside the time limit set out in Section 116 of the Act?);
•
Whether the applicant’s main focus is to have the reconsideration Tribunal effectively "reweigh" evidence that was previously submitted in the appeal (Is the applicant simply dissatisfied
with the appeal decision and rehashing argument(s) made before the appeal Tribunal without
adding anything new?);
•
Whether the application arises out of a preliminary ruling or order made by the Tribunal in
the course of an appeal (If the Tribunal in the appeal proceeding has made a preliminary ruling
before making its final decision in the appeal, that preliminary ruling cannot be reconsidered
until after the Tribunal has completed the appeal hearing and made its final decision);
•
Whether the applicant has raised questions of law, fact, principle or procedure which are so
significant that they should be reviewed because of their importance to the parties and/or their
implications for future cases (If the applicant can demonstrate, for example, the appeal Tribunal
failed to comply with the principles of natural justice; made some mistake in stating the facts;
made a serious mistake in applying the law or failed to deal with a significant issue in the appeal,
the Tribunal will be inclined to grant reconsideration);
•
Whether the applicant has made out an arguable case of sufficient merit to warrant the
reconsideration (Has the applicant presented persuasive evidence or argument to demonstrate
that there is likely an error in the appeal decision?).
If the Tribunal, after weighing the factors in the first stage, concludes that the application is not appropriate for
reconsideration then the Tribunal will reject the application and provide its reason for not reconsidering the
appeal decision.
However, if the Tribunal finds that the application raises one or more issues that justify reconsideration,
the Tribunal will proceed to the second stage in the analysis where the merits of the application will be
evaluated.
The merits of the application relate to and involve consideration of one or more of the grounds of appeal
the applicant may have previously raised in the appeal such as breach of natural justice, error of law or new
evidence which the applicant wants the Tribunal to review in the reconsideration application. For a
discussion of these grounds please refer to paragraph 3 in the Guide to Appeal Form.
Some examples of when the Tribunal will not exercise its discretion to reconsider and will thus dismiss the
applicant’s reconsideration application at the first of the two-stage process include the following:
Example: Where the applicant is raising new issues in the reconsideration application not
previously raised or argued in the appeal of the determination.
Example: Where the applicant simply wants to have another hearing before a different tribunal and
has nothing new to say but simply desires to reargue the submissions and resubmit the same
evidence previously submitted at the hearing before the Director’s delegate and subsequently in
the appeal of the determination.
Example: Where the applicant applies to reconsider a preliminary decision of the Tribunal (for
instance, a preliminary decision regarding the scope of the appeal or whether certain
documents should be disclosed).
Example: Where the applicant has missed the deadline for filing his or her application
for reconsideration and has not provided any or insufficient reasons for missing the time limit to
apply.
August 20, 2015
Page 4 of 6
Time limit for reconsideration application
The applicant must file their Reconsideration Application within the statutory time period set out in
section 116 of the Act, namely, within 30 days after the date of the Tribunal’s (appeal) decision.
What do you want the Tribunal to do?
If the Reconsideration application meets the requirements of the Employment Standards Act and the
Tribunal’s Rules of Practice and Procedure and the Tribunal does not summarily dismiss it at the first stage
of the reconsideration process, the Tribunal will seek submissions from the other parties and the
Director. Once all the submissions from the participating parties have been received in accordance
with the Tribunal’s Rules of Practice and Procedure (see Part 4), the Tribunal will make its decision. The
Tribunal has the authority to confirm, vary or cancel the order or decision or refer the matter back
to the original panel or another panel of the Tribunal. Therefore, it is important that you specify
in your reconsideration submissions the precise remedy you are seeking from the Tribunal. In other
words, you must state what you want the Tribunal to do with the original Tribunal order or decision
made on appeal. Make sure you provide your full arguments justifying the remedy you are seeking.
6.
I am requesting an extension to the statutory reconsideration time period.
Requirement to file a written explanation for the delay
Although a person served with a Tribunal decision or order of the Tribunal may make an application for
reconsideration, the Tribunal will not automatically reconsider the decision or order in question. The decision
to reconsider is within the sole discretion of the Tribunal. It is important to note that in light of the
objectives of the Employment Standards Act, which include efficiency, fairness and finality of the Tribunal’s
decisions, the Tribunal is very cautious in exercising its discretion to reconsider an order or decision and will
only do so in exceptional circumstances.
If you, as an applicant, file your reconsideration application after the expiry of the time limit for applying for
reconsideration, Rule (28)(1) of the Tribunal’s Rules states that you must provide written reasons explaining
why your application was not filed in time.
However, if you fail to provide written reasons why your application for reconsideration was late or if you
provide insufficient reasons explaining the delay, the Tribunal may not proceed with your application.
Therefore, it is imperative that you provide a sufficient written explanation, with your late-filed reconsideration
application, explaining why your application is late.
It is important to note that where the Tribunal proceeds with your late-filed application because it is persuaded
that you have a reasonable explanation for your late filing, the Tribunal may still reject the application at the
first or second stage of the two-stage analysis referred to above under the heading: “What is the process employed
by the Tribunal in deciding whether or not to exercise its reconsideration authority?”
What factors will the Tribunal consider in determining whether or not to proceed with your late filed reconsideration
application?”
The factors the Tribunal considers when deciding whether to proceed with a late-filed reconsideration
application are similar to those the Tribunal considers when determining whether or not to grant an extension
of time to appeal where an appeal application is filed late (see the Guide to Appeal Form). These factors include
the following:
(1)
If there is a reasonable and believable explanation for the applicant’s failure to request a
reconsideration within the time limits;
(2)
there is not an unreasonably long delay by the applicant in filing his or her reconsideration
application;
(3)
there has been a genuine, and continuing, intention to file a reconsideration application;
(4)
the applicant has made the other parties, including the Director, aware of his or her intention to
file his or her application before the expiry of the time limit for filing a reconsideration application;
(5)
the other party will not be unduly prejudiced if the applicant is granted an extension of time to
request the reconsideration; and
August 20, 2015
Page 5 of 6
(6)
the applicant, based on first or initial impressions, has a strong case that might succeed.
The Tribunal will weigh and balance these factors; that is, the applicant does not have to prove the existence of
all of them. While there may be stronger evidence of one factor, and some (or no) evidence concerning
another factor, the Tribunal will weigh all the evidence in making its final decision on whether to allow the late
reconsideration application.
7.
Submit the following documents to the Tribunal
To complete and file your Reconsideration application, you must submit by mail to the Tribunal’s office
address (provided on the Reconsideration Application Form), or by e-mail to [email protected], or by fax
to 604-775-3372, your signed Reconsideration Application Form, together with your written reasons and
argument; any documents in support of your application; and your written explanation for your late
reconsideration application (if your application is late).
August 20, 2015
Page 6 of 6