Practice Manual Chapter 6

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6.00 DECISION - MAKING PROCESS

6.10 Panels

Appeals or applications to the Tribunal may be determined by one appeal commissioner or by a panel of three. Panels are designated by the Chief Appeal Commissioner. One member of a panel is designated panel chair. Participants have no input into the composition of a panel. Prior to the hearing of an appeal, if a panel member is unable to continue, the member may be replaced by another appeal commissioner at the discretion of the Chief Appeal Commissioner.

6.20 Joining Related Appeals

Two or more appeals may be joined together where the Tribunal has before it multiple appeals involving the same general issue(s). Appeals may be joined if it would assist in resolving them in a cost-effective, timely and consistent manner. If the appeals proceed by oral hearing, common issues raised by all of the appeals may be dealt with in one hearing. The appeal commissioner(s) assigned to hear the appeals may take steps to ensure a fair hearing and to protect the privacy of information particular to the individual appeals.

Depending on the circumstances, the Tribunal will:

• issue a generic decision addressing all the joined appeals
• issue a generic decision dealing with the common issue(s) raised by the joined appeals, together with individualized decisions for each particular appeal; or
• issue an individual decision on each appeal, taking into account common issues, evidence and submissions

6.21 Consolidated Appeals

The Registrar may consolidate two or more active appeals for the same participant into one appeal. This may be done where one participant has multiple appeals arising from the same claim file, injury or related injuries. A decision to consolidate appeals can be made at the request of the participant or by the Registrar with the consent of the participant, where the Registrar believes it would be efficient and fair to do so.

6.30 Pre-Hearing Conferences

The Tribunal may require participants to attend or participate in a pre-hearing conference to discuss procedural and substantive issues relating to the conduct of the appeal. A prehearing conference may concern any or all of the following:

• identification of the issues
• determination of what additional evidence, including any new medical or other expert evidence, is required, and timeframes for the production of any such evidence
• procedural issues, such as whether an oral hearing will be convened and, if so, when and for how long the hearing should be scheduled
• exploration of settlement of some or all issues on appeal

The Registrar, or the appeal commissioner(s) assigned to the appeal, will decide if a prehearing conference should be held and will notify the participants. The conference may be conducted over the phone. Pre-hearing conferences are generally not recorded.

6.40 Expert Evidence

If a participant intends to file new expert evidence the Tribunal should be notified as soon as possible. Generally speaking, expert evidence is defined as opinion evidence given by a person whom the Tribunal finds to be an expert, based on their training or qualifications.

This can include a physician, a scientist, a physiotherapist, an accountant or any other person with expertise in a particular area. The Tribunal's rules concerning expert evidence apply to evidence received in oral hearings, as well as appeals proceeding by written submission. Generally, the following rules apply:

• expert opinion evidence will generally only be accepted as expert evidence if it is from a person the Tribunal recognizes as being qualified by education, training or experience
• objections to a person's qualifications as an expert will not generally cause the appeal commissioner(s) to exclude the evidence. Objections will be considered in weighing the evidence received
• if it is anticipated that the expert witness will attend a hearing, a written report outlining the evidence that will be addressed at the hearing must be filed in advance of the hearing
• the qualifications of the expert should be included with the expert's report
• written reports from expert witnesses should be provided to the Tribunal and the other participants as soon as they are received and no later than the deadline set by the presiding appeal commissioner(s)
• when a previously undisclosed expert's report is received at an oral hearing, the Tribunal may determine what steps are necessary to ensure that the other participants are given an adequate opportunity to respond. The Tribunal may allow an extension of time after the oral hearing for submission of a response; postpone the oral hearing; or take whatever steps the Tribunal considers appropriate
• the Tribunal will not require an expert to attend an oral hearing unless the Tribunal believes the expert's attendance is necessary for a fair hearing of the issues or that a failure to attend the hearing would prejudice a participant to the proceeding

The Tribunal may request a person having professional, technical or other knowledge to assist them in respect of any matter before it. If the Tribunal receives such assistance, it will not rely upon any new evidence provided by the expert without notifying the participants and providing them with an opportunity to respond to the evidence.

6.50 Summons and Orders for Production

Section 178(1) of the Act confers on any member of the Tribunal, the powers, privileges and immunities of a commissioner appointed pursuant to the Public Inquiries Act. These include the authority to:

• summon witnesses and require them to give oral or written evidence on oath or affirmation
• require the production of any document or thing the Tribunal considers necessary for the full investigation and consideration of any matter
• accept oral or written evidence, unless the evidence is inadmissible by any statute or is inadmissible in a court by reason of any privilege under the law of evidence; and
• punish persons guilty of contempt

If any participant believes that a person with relevant evidence will refuse to attend an oral hearing or requires a summons to get time off work, the participant may ask the Tribunal to issue a summons, also known as a subpoena. A participant who has attempted to obtain relevant documentary or other evidence but has been unable to do so, may ask the Tribunal to issue an "order for production". Also, the Tribunal may issue a summons or an order for production on its own initiative. Summons and orders for production may be issued together or separately.

A request for a summons or an order for production may be made using a form found on this website. The summons or order for production may be drafted by the Tribunal if necessary, signed by an appeal commissioner(s) and forwarded to the requesting participants for service.

Where an oral hearing is to be held, and a participant believes a summons is required to compel a witness to testify at the hearing, a written request should be made to the Tribunal, at least 10 days before the date of the hearing. An order for production of documents or other evidence can be issued for appeals proceeding by oral hearing or written submission.

The Tribunal may provide reasonable traveling and living expenses to any person summoned as a witness [s. 178,s.179]. The Tribunal will not provide expenses to anyone other than a witness summoned by the Tribunal on its own initiative.

6.51 Criteria for Issuing Summons and Orders for Production

The Tribunal's decision to issue a summons or an order for production is based on the facts and circumstances of the particular appeal. Considerations usually taken into account in deciding whether to grant such requests include:

• whether the evidence being sought is likely to be relevant, in other words, it would tend to prove or disprove a matter at issue in the appeal
• whether the person to whom the summons or order for production is directed has access to, or control of, information or documents relevant to the appeal
• whether there are other means to obtain the same evidence
• whether the evidence sought is "compellable", in other words, it is not protected from disclosure by statute or by reason of any privilege under the law of evidence
• whether it would be oppressive or an abuse of power to issue the summons or order for production

If a witness is willing to attend a hearing but needs a summons in order to get time off work or to prevent some other hardship, the Tribunal will issue the summons on request.

6.52 Contempt

A person named in a summons or order for production may request that it be cancelled or varied. The request, along with reasons supporting the request, should be made in writing to the Tribunal as soon as possible. If a person fails to comply with a summons or an order for production, they may be found guilty of contempt and subject to punishment in accordance with s. 178 of the Workers' Compensation Act and s. 5 of the Public Inquiries Act.