LRB upholds decision to terminate LTD benefits

In Dewell v. BC Public Service Agency  Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply. In this case the grievor alleged that she had been denied a fair hearing.
An interesting feature of this case is that the union did not participate in the application. While a union has exclusive conduct of a grievance through all of its steps, including arbitration, the Code allows grievors who are unhappy with the results of an arbitration award to bring an application to the LRB independently of the union.

The case also contains a good summary of when an arbitration award may be challenged on the basis of new evidence.  Adam quoted from a previous court decision as follows:

In addition to the requirement that the proposed new evidence go to the heart of the issues to be determined by the arbitration board and that the new evidence could not have been obtained by the exercise of due diligence, the Board may, in its discretion, wish to consider other factors, including:

(a)The public interest.

(b)The nature of the grievance

(c) Motive of the applicant ...

(d)After discovery of the new evidence was the application to adduce that evidence made promptly?

(e)Does the proposed new evidence relate only to a minor or trivial issue?

(f)Have third parties already acted on the basis of the award?

(g)Was the new evidence obtained long after the handing down of the award?

I do not suggest that this list is exhaustive, or that the application of any of these factors should result in the exclusion of the new evidence in this case.