Practice Manual Chapter 7

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7.00 ORAL HEARINGS

7.10 General

If an appeal proceeds by oral hearing, there is an opportunity for all participants to appear before an appeal commissioner(s) to present oral evidence and make oral arguments. It is not necessary to file written submissions. An oral hearing may be conducted with the participants present or, in unusual cases, by means of teleconference or video conference facilities.

Prior to the hearing, the Tribunal will send a letter confirming the time, date and place of the hearing. Hearings are held in various locations around the province. The Tribunal will attempt to schedule a hearing close to the community where the participant bringing the appeal resides.

The participant who has begun the appeal should always attend the hearing. Any participant may bring a companion for support. Any participant may be accompanied by a representative of their choosing.

7.20 Evidence at Oral Hearings

Any person giving evidence at the hearing is referred to as a witness. Any participant may bring a witness(s) to give evidence at the hearing. Participants are responsible for advising their witnesses of the date, place and time of the hearing. The Tribunal should be notified prior to the hearing if a witness is to attend.

If special equipment such as a VCR is required at a hearing, arrangements must be made in advance.

New medical reports or other evidence should be sent to the Tribunal and to the other participants at least two weeks before the hearing, or within the deadline set by the Registrar or presiding appeal commissioner(s). The Tribunal will have a copy of the Board's claim file(s). However, if there is any additional evidence that the Tribunal should consider, it is the responsibility of the participants to provide copies to the Tribunal and to the other participants.

Delays may result if evidence is not received before the hearing or within the relevant deadlines.

7.30 Procedure at the Hearing

The procedures to be followed in an oral hearing may vary, depending on the circumstances of a particular case, but in every case, the appeal commissioner or panel will greet the participants and explain the hearing procedure. The explanation usually includes:

Usually the participant who has appealed, or their representative, is the first to begin each stage of the hearing. A participant may, but is not required to, make an opening statement. Following opening statements, the Tribunal usually receives evidence from the participants and their witnesses. All witnesses will be required to confirm that the evidence given to the Tribunal is the truth. Witnesses may be questioned by the other participants and also by the appeal commissioner(s). The participants may summarize their case at the end of the hearing and may wish to reference the Act, relevant policies or prior Tribunal decisions.

At the close of the hearing, the appeal commissioner(s) will advise the participants regarding any post-hearing submissions or evidence which is outstanding. They will also advise the participants when a decision in the appeal is expected to be rendered.

Where it appears that the time scheduled for an oral hearing is insufficient, and it is not possible to continue the hearing to completion on that date, the Tribunal may adjourn the hearing and continue it at a later date.

7.31 Privacy

Oral hearings are confidential and are not open to the public. However, the Tribunal has the discretion to permit attendance by members of the public, including the media, with the consent of all participants. Also, observers, such as family members, friends, or trainees are generally allowed to attend with the consent of the participants and the Tribunal. Observers must be identified at the outset of the hearing and are not expected to participate in the hearing.

7.32 Security

The Tribunal may arrange for security at a hearing.

7.33 Recordings

All hearings before the Tribunal must be recorded by the Tribunal [s.253(1)].The Tribunal's recordings must be kept for a period of two years after the expiry of the appeal period (30 days from the date of the Tribunal's decision). Every participant is entitled, at their own expense, to a transcript of the recorded proceedings [s.253(2)].

Participants are not permitted to use their own equipment to record the Tribunal's proceedings.

7.34 Costs

Participants at the hearing will not be reimbursed for costs connected with the hearing, such as travel expenses, unless they were summoned by the Tribunal as a witness, under s. 178 of the Act.

7.35 Post-Hearing Submissions and Evidence

Occasionally, a participant requests or is asked to provide additional evidence or submissions after the hearing. In that case, a time frame for the submission of the additional evidence or submissions will be set by the appeal commissioner(s).

If the Tribunal receives any additional evidence or submissions following a hearing, it must be disclosed to all participants who attended the oral hearing. Generally, they will have an opportunity to respond. If the Tribunal obtains further evidence on its own initiative, it will be disclosed to the participants. The appeal commissioner(s) will determine the procedure and time frame for obtaining submissions.

When the hearing has been completed and the Tribunal has received all post-hearing evidence and submissions, a written decision will be mailed to all statutory participants within 60 days.

7.40 Representation at the Hearing

All participants have the right to attend and to be represented at a hearing. A representative may or may not be a lawyer. When there is more than one person attending a hearing on behalf of a participant, the appeal commissioner(s) should ascertain which person is acting as a representative. When the employer is a limited company, one person may be designated as a representative and one as the employer.

7.50 Interpreters

The Tribunal provides independent interpreters when required. The Tribunal should be notified of the need for an interpreter when an oral hearing is requested. Friends or relatives are generally not permitted to act as interpreters, although the Tribunal has the discretion to allow this in appropriate circumstances. For example, such an interpreter may be acceptable where the participant needs assistance with only a few words. If it is apparent to the appeal commissioner that an interpreter is necessary and none is present, the hearing should be rescheduled. Interpreters are normally affirmed or sworn in at the start of the hearing.

7.60 Witnesses

Generally witnesses are excluded from a hearing until called to testify in order to reduce the likelihood of their evidence being influenced, either intentionally or inadvertently, by hearing the evidence of other witnesses. In deciding whether to exclude a witness, the appeal commissioner(s) may consider, among other things: whether there is an actual risk a witness may be influenced; whether the witness' evidence is likely to be contentious; and whether there are good grounds to allow the witness to remain in attendance.

The Tribunal has the discretion to hear evidence from persons who were originally identified as observers or representatives. If the person was present in the hearing while another witness(es) gave evidence, this fact may be taken into account by the Tribunal in determining the weight to be given to the evidence subsequently provided by that person.

If any person, including the worker, employer or their representative, attends the hearing as an observer, the Tribunal may require them to become a witness to answer questions.

7.70 Site Visit

The appeal commissioner(s) may conclude that a site visit is necessary either prior to, or during a hearing. Participants who attend, or plan to attend, the hearing, and their representatives, will be invited to attend the site visit. The appeal commissioner(s) may receive comments and submissions from the participants during the site visit, or may reconvene to a hearing room to receive submissions concerning the relevance or significance of the matters observed during the site visit.

7.80 Failure to Attend a Hearing

A participant, with notice of a hearing, who fails to attend the hearing is deemed to have waived the right to receive and respond to any evidence or submissions presented at the hearing or received by the Tribunal after the hearing. However, the Tribunal may exercise its discretion to seek post-hearing submissions from a participant who did not attend the hearing if necessary to resolve the appeal. If a participant chooses not to attend the hearing, another participant may ask the Tribunal to request their attendance.

A hearing will generally not proceed in the absence of the participant who has brought the appeal, unless there has been agreement to do so, in advance of the hearing. However, the appeal commissioner(s) has the discretion to proceed in the absence of the participant bringing the appeal.

Where a participant has filed a Notice of Participation with the Tribunal but is not present at the time scheduled for the hearing, the Tribunal may:

7.90 Scheduling

The scheduling of oral hearings for self-represented participants, appeals with representatives not part of the Workers' Advisers Program and appeals in the specialty stream is generally done by telephone conference. The purpose of the conference call may include:

Oral hearings before the Tribunal involving a representative from the Workers' Advisers Program are generally scheduled at monthly "docket days". They may also be scheduled at other times by calling the Registrar or Scheduling Coordinator (Halifax local calls: 424- 2250; long distance calls: 1-800-274-8281).

In Halifax, docket day is a meeting between workers' advisers and the Registrar where appeals may be scheduled. The workers' advisers are given a list of their unscheduled appeals at least one week prior to docket day. They come prepared to set dates for those appeals that are ready to proceed. In Sydney, the same process is followed except that the meeting is done by conference call rather than in person.

The scheduled date for a hearing should be adhered to. There are many factors considered in the initial scheduling of a hearing that may not be considered if an adjournment of the initial date is requested. They include: convenience to the participants; representative's schedules; vacations, the Tribunal's availability and the need to wait for outstanding evidence.

Chapter 6: Decision-making process <Chapter 7: Oral hearings> Chapter 8: Appeals proceeding by written submission