Workplace safety and insurance appeals tribunal (Ontario)
WSIAT is an agency of the ministry of labor and it is the final level of appeal to which dissatisfied workers and the employees bring disagreements and disputes regarding the workers compensation issues in Ontario and is independent of WSIB (workers safety and insurance board). Its decisions are final and therefore are unquestionable. The public interest mandate of the tribunal is to hear and decide appeals that have been brought before them by the workplace safety and insurance board as well as other matters that may be assigned to them under the Workplace Safety and Insurance Act Of 1997
Fundamental guiding principles guiding the Workplace safety and insurance appeals tribunal (Ontario
The tribunal, being a public system adheres to all procedures and guidelines stipulated by the WSIAT (work safety and the insurance appeal of 1997). This being the case, it has laid down principle that guides its operation in the execution of its mandate. Some of the guiding principles include the following.
- To have an accessible appeal in relation to workers and employers disputes
- To Providing superior quality services to the workers, the employers and all the other stakeholders involved
- To have experienced and knowledgeable decision makers who are capable of making logical and informed decisions
- To process a given dispute or case in a timely and efficient manner
- To provide easy access to information regarding the compensation laws and the processes involved as well as
- To effectively and efficiently coordinate with the WSIS partners in the course of an appeal determination so as to ensure fairness and accountability in their undertaking.
Procedures in place for the tribunal
The appeal has laid down practices and procedures in place and some of the latest appeals practices include those practices that are related to the intent to object form as well as the time limit to object, and concept of credibility among other policies are in place. As indicated, the tribunal is guided by section 131 of the WSIAT, this act does not give pre mandated procedures, and therefore gives the board express jurisdiction to determine its own practice and procedure in relation to any appeal, application, proceedings, or mediation. In case during the proceedings a conflict arise between parties as to the practice direction and a given guideline, the practice direction would prevail. But all in all, when a case is brought up, the prehearing process starts, followed by the hearing, and then the post hearing.
All appeals that are brought to the tribunal are decided by the board, and are decided either by the vice chair, or the vice chair, or a panel of three. These three parties include the respondent, the responder and the appeal chamber. Despite this fact, in certain instances, and upon the board studying the appeal, it may decide to advice the members to the appeal to consider alternative dispute resolution mechanisms. In this case, the board advices the parties on the advantages and disadvantages of presenting their appeal to the tribunal and that of the mediation so that the parties can make informed decision on the matter. All in all, the ADR process is an efficient one as the parties can decide ion the pace that they intend to mediate in. at the same time, it is also cost effective meaning that the litigation costs and other costs associated with the appeal like the experts witness account are done away with. Through the use of ADR, the parties are able to hide the company’s privacy details since the mediation does not take place in public but in private.
If the parties opt to undergo the tribunal’s way, the board ensures that there is procedural fairness. This is in regards to various issues regarding the responder and the respondent, in terms of issuance of notices, evidence presentation among other factors like expert witness and witness surveillance. This being the case, the board ensures that there is fairness by requiring the parties to give contact address through which they use to contact them in case they are required at the tribunal. At the same time, prior to attending, the tribunal writes to the participating parties notifying them of the hearing date. The parties are supposed to set a hearing date but if they fail, the board fixes the date. Since the hearings are conducted in English or French, the party which does not speak either of the language is given an interpreter. There is a three weeks’ notice which the tribunals gives the parties to prepare for witnesses in order to produce evidence
Many prehearing procedures take place before the commencement of the appeal hearing. These processes include the notices of appeal (NOA) by the person intending to make an appeal. The confirmation of the appeal through a letter, application for time extension if applicable, access of the information subject to appeal, mediation processes to try and solve the case out of the tribunal, prehearing conferences to update the parties of the expectations of the tribunal, disclosures, surveillance evidence production of documents and summons among other processes.
After the prehearing process, the parties are scheduled to report to the panel at a later date to start the hearing. This is determined by various factors including the workload pending in the tribunals file, the urgency as well as the source of referral. During the hearing, there are various ways in which disclosures are handled. Disclosures enable the parties to the appeal an opportunity to understand the case, to prepare for the hearing, to consider if they can mediate instead of going to appeal, to prepare documents and evidence, as well as identifying another information that should be needed in the preparation of the hearing. Based on the Act, all the parties are supposed to disclose all evidence to the other party three weeks before the hearing date commences. The materials to be presented like the medical reports should be availed during disclosure. The disclosures usually require three weeks but certain exceptions including the submissions for the law and tribunal disclosure of updates apply. The tribunal requires all the witnesses to be disclosed on the COA, including a summary of their evidence and the number of witnesses to attend.
Procedures in place regarding vary depending on the condition. In the determination of jurisdiction, the board has the mandate to jurisdiction on all WSIB final decisions that a party is dissatisfied with (Workplace safety and insurance para). When dealing with a party to the appeal that is absent, or failure to attend by the respondent within 30 minutes, the tribunal may opt to start the proceedings without the said party. In case of failure to attend by theappellant within 30 minutes of the hearing, the board may decide on the case based on the information presented, or may declare the case inactive for 3 months. In case of non-communication within the tree months, the tribunal may withdraw the case or take any other action that may be considered appropriate.
Adjournment requires the hearing to be postponed and occurs when one of the parties writes to the tribunal indicating so. Because of the workload of the tribunals, the parties are expected to prepare for the hearing and be ready to attend on the specified date. The strict adjournment policy does not allow for adjournment and therefore leads to non-expediting of the hearing. All in all, adjournments that are made before the hearing is expected to be made and a copy sent to the tribunal indicating the reason for the request and sent to the other party requesting them to confirm adjournment. In case of adjournments after the hearing has begun, the appealing may refuse to grant one and thereby promoting the party to attend. The absence of one party may not render an appeal to be adjourned, and where the adjournment has been brought, various conditions may be looked at including whether the need to adjourn supersede the hearing, whether there will be any prejudice upon grating the adjournment. Upon request, the panel may impose condition for future conduct but only after the testimony of the available witness is heard.
Admissibility of evidence
The board uses Surveillance evidence and determines whether it meets the board’s requirements. The board scrutinizes all evidence and weighs the admissibility. When dealing with witnesses, any party intending to bring a witness is expected to be presented before three weeks to the hearing or at the earliest possible time. In case of an expert’s witness, the board verifies his credibility and in certain times may use his evidence. In the case of expert witness, the panel considers various factors concerning the person including education, certification, knowledge and skills, training and expertise, affiliations among other factors. If the tribunal is satisfied that the person is an expert, disclosure of the expert must be done soonest possible, but not later than three weeks prior to hearing. In the submission, the expert report will be required, the expert’s CV as well as a letter for the experts report. The party who files for the expert is the one that pays him fully, though the panel may pay where the expert’s opinion is important in decision making. An expert witness is that person who gives opinion based on training, education, or experience (Currier and Thomas 524). The board must recognize the person as an expert before he/she can be given the opportunity to give expert witness.
To determine credibility of the witness, the board undertake investigations and therefore are equipped with some facts regarding the appeal. This helps them in weighing evidence and determining the outcome. They also use the laws set out to determine the weight of the evidence. Documentary evidence in an appeal should be brought prior to the appeal date.
In the determination, hearing and presentation of the case, advocates may be present to represent either of the parties. At the same time, the media and interveners may be present during presentation.
In the determination of alternative dispute resolution, the board usually employs the following process
- The request by either of the party to the appeal to enter into mediation
- The acceptance by the appeal and the issuance of an appropriate mediation process
- Agreement of both parties of the mediation
- Signing of the consent form at the mediation and agreeing to participate and engage in the mediation process. .
- Allocating mediators from the board
Challenges and benefits of ADR the tribunal/board
One of the advantages of ADR is that it leads to efficiency especially when both parties are in agreement. At the same time, it may lead to time savings. With the use of ADR, confidentiality and privacy regarding some company aspects can be maintained. In terms of costs, the ADR process if cost effective since the litigation costs, time wastage would be reduced. It can also lead to the implementation of new strategies to sort the cases under the tribunal.
The challenges however of this approach includes the fact that if the mediator take asides, it may not lead to mutual understanding. The mediator may also act in partiality, thus compromising the outcome. The parties to the ADR who represents the disputes have various skills, but Generally speaking, the practitioner should be well versed with the mediation process and should be aware of the labor laws as well as public relation skills. Generally, university education or higher level of skills in relevant fields can be appropriate for the practitioner.
Decision making by the board
Once the post hearing stage of the appeal is complete, all the materials regarding the case are left with the vice chair or the panel (if there is one). There is no communication between the parties and the chair or the counsel office until such a time when the decision will have been made and released. The decisions are solely made by the vice chair and is not helped by the council staff to write up the decision. These decisions may take time and upon completion are mailed to the parties. In case there is need for post by the tribunal are published at the board’s website where one can gain access through inputting the key word, or searching the required decision by reference, decision number, release date and so forth.
Rights of appeal
The decisions by the WSIB are appealed to the WSIAT before the expiry of six months. It should also be known that the final decisions of the WSIAT can be appealed only after a final decision have been made. A notice of appeal (NOA) is therefore filed to the tribunal indicating the why the made decision is being considered to be incorrect and therefore ought to be appealed (Macintosh, Para).
Code of conduct
There is a set code of conducts for the members participating in the appeal and include
- The fact that the members shall conduct themselves personally and professionally so as to enhance and maintain public confidence, objectivity and impartiality
- That members shall act in accordance to the applicable laws
- That members shall not condone or commit unethical issue and shall not invoke others to the party to do so
- That the members should act in transparency and in an accountable manner personally and professionally
- That the conflict between the parties shall be resolved in the favor of the public interest.
Media and the board
The media is allowed in the boardroom as observers, but in certain cases requiring privacy, they are not allowed. All in all, the mediaprohibited to participate in the proceedings. Various articles about the tribunal have been published in the media. One of such case entailed a man who had gone on a hunger strike for 10 days protesting what he termed as injustice being done by the tribunal for not hearing his case that occurred in 1991 when he used to work at Baycrest arena in New York, and was injured in the process (Inside Toronto para). This is a tribunal decision no. 2159/09 where it was ruled that the limit on mental stress policy of the WSIB violated the charter of rights and freedom (Mondaq para).
Currier, Katherine A, and Thomas E. Eimermann. Introduction to Paralegal Studies: A Critical Thinking Approach. New York: Aspen Publishers, 2010. Print.
Inside Toronto. Man ends 10day hunger strike after WSIB grant appeal request (2014). Web. Accessed on 22-11-2014 from: http://www.insidetoronto.com/news-story/4235053-man-ends-10-day-hunger-strike-after-wsib-grants-appeal-request/
Macintosh, Jon. VA Disability Claim: A Practical, Step-By-Step Field Manual for Active-Duty Service members and Veterans on How to Prepare, File, Maintain, Win and Appeal a Service-Connected VA Disability Claim Without Going Insane. Adagio Press, 2014.
Mondaq: Canada: WSIAT: Limits to entitlement for mental stress violate the charter (2014). Web. Accessed on 21-11-2014 from: http://www.mondaq.com/canada/x/314584/employment+litigation+tribunals/WSIAT+Limits+To+Entitlement+For+Mental+Stress+Violate+The+Charter
Safety, Ontario Workplace, and Insurance Appeals Tribunal. “[Notice of appeal and revised appeal procedures].” (2001).
WSIAT. Why is WSIAT an Expert Tribunal. Web. Accessed on 21-11-2014 from: http://www.wsiat.on.ca/english/about/expert.htm