Workers’ compensation entitlement, benefits and return to work can generate significant litigation between employers and workers. This can be costly and cause delays in resolving complex disputes. Our section is unique because we are a meeting ground of worker and employer advocates plus neutrals from the WSIB and the WSIAT. This provides a forum where we can explore potential collaboration in dispute resolution to the benefit of our clients and the system as a whole.
Our program in June 2024, Collaboration and Civility: The Bar and the WSIAT, focused on how collaboration and civility between the Bar and the WSIAT can work to the advantage of the parties to a workers' compensation dispute and enhance fairness. The program focused on:
- How collaboration and civility among hearing participants can be beneficial for processing the appeal, including valuable insights from real cases
- Updates on the WSIAT's new Navigator process, to aid self-represented parties or any parties/representatives who need assistance in the pre-hearing stag
- Helpful information from the Lead of the Tribunal's ADR and Mediation Services on the importance of collaboration and civility in mediation
From the WSIAT we had Rosemarie McCutcheon, Tribunal Chair, Nicole Bisson, Director Appeal Services, Martha Keil, Tribunal Vice-Chair and Sean Ryan, Tribunal Vice-Chair/Lead, ADR Program. They presented on various aspects of the WSIAT’s processes and how collaboration and civility could be beneficial.
This set the stage for a panel discussion of Joanna Smith, Vice-Chair Registrar, WSIAT, Stephen Roberts, Partner, McTague Law Firm LLP and Maryth Yachnin, Research and Test Case Lawyer, IAVGO Community Legal Clinic.
Our program chairs were Julia Noble, Associate Counsel to the Chair, WSIAT and Alec Farquhar, Co-Lead, Engagement, Inclusive Design for Employment Access.
The Chair’s Remarks – Rosemarie McCutcheon, Tribunal Chair, WSIAT
Chair McCutcheon set the stage for the program. She emphasized that collaboration and civility are built into the Tribunal’s processes and culture. As examples, she expressed her appreciation for the collaboration of the Bar with the WSIAT in responding to the challenges posed by COVID and the move to a virtual process.
Access to justice is the ability of all parties to meaningfully participate in all proceedings. It emphasizes a focus on substance over form. The Chair noted that the WSIAT has an inquisitorial mandate, as does the WSIB. The WSIAT is not bound by precedent and may admit such evidence as it sees fit. All of this means that the WSIAT is tasked to ensure the best possible approach to dispute resolution and adjudication.
When resources are used efficiently, the WSIAT can maximize access to justice - both case by case and at the institutional level.
Consultation is important to the WSIAT. In 1985 the late Ron Ellis, founding Chair of the WSIAT (then called the Workers’ Compensation Appeals Tribunal) created the Advisory Group to the Tribunal. The WSIAT uses this Group very actively to report on its plans and obtain input from the advocates and stakeholders. The Chair also invited members of the Bar to provide feedback on the new processes and procedures.
In terms of relations between the representatives, the Chair stated that the Tribunal is trying to help establish a culture of more informal communication between the representatives. Of course, advocates are there to represent the interests of their clients and the Tribunal appreciates that. However, it is open to them to reach out to each other, particularly where there are complex preliminary issues, evidentiary issues and so on.
At the WSIAT, all parties will be treated fairly and impartially, with great effort to ensure that they feel that they have been heard. This is supported by a major internal training and support program for adjudicators, including emerging areas of law, cultural competencies and trauma informed adjudication.
The WSIAT expects representatives to be familiar with the WSIAT Code of Conduct, to show respect for the adjudicators and staff and to be familiar with the LSO Rules of Professional Conduct, particularly in terms of integrity. The WSIAT’s process takes place in a context where there are not unlimited resources. This means that the Tribunal needs to balance full and fair adjudication with resource allocation. So, if representatives can resolve some issues prior to the hearing, it allows the Tribunal to focus its valuable resources on the issues most needing attention.
Navigation Services – Nicole Bisson, Director of Appeals Services, WSIAT
Nicole played a key role in the development of Navigation Services at the WSIAT.
These services were developed as an access to justice initiative. The WSIAT learned a lot from other organizations, especially including the federal Social Security Tribunal. The goal is to help guide self-represented parties through the whole appeal process. The WSIAT already had in place various supports for such parties, including a mandatory discussion with a senior legal worker and a pre-hearing reminder call. However, they wanted to see if they could do better, earlier in the process and in a more proactive way.
The Navigators work in pairs. The first helps with starting an appeal and filling in forms. The second helps with preparing for a hearing. The Navigator 1s are the WSIAT’s Customer Service Representatives. They are the people staffing the WSIAT’s call centre. The Navigator 2s are the Senior Legal Workers, who take over in the pre-hearing stage and continue right through the post-hearing stage as necessary.
Much of the Navigator 2 support was already in place, so the really significant enhancements are related to the support provided by the Navigator 1s. It starts with a call to the self represented party a few days after the initial letter goes to them from the WSIAT. Sometimes parties tell the WSIAT that they don’t need a Navigator. But in most cases, the parties appreciate the help.
The Navigators can guide parties through the appeal process from start to finish. They explain the role of everyone involved in the appeal. They can help fill out forms, prepare for the hearing and explain what happens at the hearing and answer any questions.
Navigators cannot give legal advice, speak for parties, be a representative, be at the hearing or refer parties to a specific representative or organization.
There was a soft launch in November 2023 and a more formal launch in January 2024. The WSIAT further expanded the service in April 2024 by introducing a Navigator Log. It captures the main points of contact with self represented parties. This helps inform the Vice-Chair hearing the appeal of the support that has been provided. This brings greater transparency.
Recurring themes that have come up so far include:
- Confusion over the distinction between the WSIB and the WSIAT
- Understanding the difference between a navigator and a representative
Overall, navigation services have been well received. These services promote civility and collaboration. They set a positive tone from the outset. Taking a step-by-step approach keeps the case on track. It’s also easier to educate folks because they are less frustrated and confused. It also builds collaboration because people understand the process better. Although this wasn’t an objective of establishing the navigator service, it has also contributed to efficiency in case processing.
The service is also available to representatives who have questions about appeal processing.
An important example of collaboration of the parties with the Tribunal – Martha Keil, Vice-Chair, WSIAT
Vice-Chair Keil provided insights into collaboration and civility from her experience with an occupational disease case cluster example. This was a complex situation involving a number of appeals from a single workplace. Hicks Morley represented the employer and the OWA represented the workers.
The parties came to the Tribunal with agreement on a proposed way to proceed with the cases. This included the proposal that the Panel would not just handle the lead case but eventually all the cases.
The parties of course wanted different outcomes from the appeal; however, they had reached a common understanding of how best to proceed with the case. And they believed that the more the Tribunal knew, the better the decision making would be. Because of the collaboration of the parties, it didn’t take as long to bring the Panel up to speed.
The parties had also agreed on a site visit of a comparable fibreglass factory (the original one had closed). The group visiting the site included resource people for the parties. The OWA’s resource person had been in a quasi-managerial role with the employer and had immense knowledge of the manufacturing process. The employer and worker resource people actually agreed on many of the issues that came up about the process. The information provided by the OWA resource person established much of the groundwork for the Panel’s subsequent work.
This set the tone for how the hearing unfolded. The parties were really interested in getting the best information possible. They agreed on a process for hearing expert witnesses. This included providing questions for the experts in advance of their testimony, which meant that the testimony was clear and well organized. The employer provided many employment records, which was useful. There was also a lot of exposure data, both from the employer and from the MOL.
In Vice-Chair Keil’s career as an adjudicator, this was one of the most impressive displays of cooperation in getting the information necessary for the Tribunal’s process. The parties also agreed on some critical facts, for example that there was silica and asbestos in the workplace. They agreed that earlier asbestos exposures were greater than later ones overall. They interpreted the data differently of course. They didn’t fight about issues that they didn’t need to fight about. It made the hearings more focused.
The employer and worker representatives developed a memorandum of agreement which was very helpful in the case process. This included agreement that fibreglass didn’t cause cancer, which was a vital issue for the employer. In turn, the employer agreed that it would participate in the exposure part of the hearing but not the causation part. The parties wanted the Tribunal to sign off on the memorandum, but the Panel declined to do so. This was because the OWA did not represent all of the workers, so that the Tribunal could not abridge the rights of those other workers; and also because this would foreclose the Tribunal’s adjudicative obligations. However, the Panel did accept that the parties could proceed with the case on the basis that fibreglass exposure doesn’t cause cancer. It made it easier to handle the case.
During the exposure part of the hearing, there were lots of collaborative efforts to obtain information about exposures. The parties agreed that the Panel would hear from retired workers. This evidence balanced what was available from the “paper trail” for the factory. Vice-Chair Keil was impressed by the approach of the parties in trying to get the best information – the civility and cooperation were impressive. For example, the OWA proposed that the employer obtain the workers’ employment records, and the employer did so, making the process much easier.
The whole process was challenging and very time consuming. But in spite of this, the original request for a dedicated panel was a good idea. It would not have been possible for several different panels to receive and digest the incredible volume of evidence about these cases. Ultimately, the parties and the Panel collectively developed a deeper knowledge of the subject matter. It was a fabulous experience in how the Tribunal and the parties can work together to produce a really first-rate outcome.
ADR and Mediation – Sean Ryan, Vice-Chair and Lead, ADR Program, WSIAT
Vice-Chair Ryan spoke to how collaboration and civility can enhance the ADR and mediation processes.
ADR relates to one party appeals and mediation refers to cases with two parties. The goal of both is to resolve an appeal without a formal written or oral hearing.
The way that ADR works is that the representative discusses the appeal with a Dispute Resolution Officer. If there is agreement, the representative signs a Proposed Resolution. This is submitted to a Vice-Chair for approval. If approved, the Vice-Chair writes a short decision incorporating its terms. Mediation operates the same way, except that of course there are two parties.
If ADR/Mediation fail, or the proposed resolution is rejected by the Vice-Chair, then the appeal is restreamed to a regular oral or written hearing, with a Vice-Chair or Panel not involved in the earlier stage. Details about the ADR/Mediation are not shared with the hearing Vice-Chair/Panel.
Civility and collaboration are of course essential for participation in ADR or mediation. ADR/Mediation are offered at the discretion of the WSIAT.
There are some minimum requirements to participate in the process. Keep appointments with the DRO; return calls in a timely fashion; send documentary evidence as requested; sign and return forms and PRs as required.
The ideal is what Vice-Chair Ryan calls “robust collaboration”.
For ADR, this includes being fully familiar with the facts; being fair and reasonable in your assessment of the case; and being open to reasonable proposed resolutions. It could also include writing a submission before meeting with the DRO. You may indicate whether you wish your submission to stay on the record should ADR/mediation fail; or whether you wish it to stay off the record for future proceedings.
For mediation, really robust collaboration would include: reach out to the other party to clarify/revise issue agenda; identify outstanding issues or missing evidence; pursue a reasonable outcome that is acceptable to both parties; make an agreed statement of facts and/or a joint submission on the outcome. There is also nothing preventing representatives from engaging in this sort of collaboration when the case is heading for a hearing.
ADR and Mediation are offered to self represented parties in a limited range of cases, depending on a number of criteria, including the complexity of the case, the benefits at stake and the quality of the documentary evidence.
ADR and mediation allow parties to have more direct participation and ownership in the outcome of the appeal; removes the uncertainty of the outcome in traditional adjudication; often results in reduced expenditure of time and resources for the parties and the Tribunal. It’s consistent with the principle of “proportionality” in the adjudicative process. For mediation, helps to preserve a positive relationship between the worker and the employer. Avoids the stress of testifying for vulnerable witnesses.
The perspective from the front line – Joanna Smith, Vice-Chair Registrar, WSIAT, Stephen Roberts, Partner, McTague Law Firm LLP and Maryth Yachnin, Research and Test Case Lawyer, IAVGO Community Legal Clinic
Following the presentations from the WSIAT came the front-line perspective from a worker and employer advocate, Maryth Yachnin and Stephen Roberts, and the WSIAT’s Vice-Chair Registrar, Joanna Smith.
The importance of collaboration overall
We began with a general question about the importance of collaboration between the parties and with the Tribunal
For Vice-Chair Registrar Smith, collaboration between the parties is important as it facilitates a more efficient adjudicative process. Tribunal hearings are inquisitorial, not adversarial and combined with the Tribunal’s investigative powers, the Tribunal’s intent is to find the right answer, not to declare a winner based on the best argument. To that end, collaboration between parties can reduce hearing time, streamline the issue agenda, avoid adjournments, and the need to go post hearing for missing evidence, late evidence, or to address late submissions and will facilitate a more efficient use of Tribunal resources. When the parties collaborate in sharing evidence and caselaw well ahead of the hearing, even sorting out possible areas of factual agreement, clarifying issues on appeal, clarifying outstanding issues at the Board and talking to each other in advance about any possible preliminary issues that may be raised – this all goes towards facilitating a more efficient adjudicative process and use of tribunal resources.
For Maryth, collaboration can help reduce the trauma and distress caused by the appeal process, especially to vulnerable and precarious workers. Collaboration helps increase predictability. For example, when we are able to anticipate jurisdictional problems that may arise and address them with the Tribunal in a timely way, we improve our ability to prevent ping-ponging or delays that increase stress and anxiety.
Stephen emphasized that while as advocates we must represent our clients’ interests to the best of our ability, that can still be accomplished with civility and collaboration. By being open to collaboration issues can be refined and possibly even resolved. Furthermore, facts can be agreed upon or areas of evidence that are not in dispute can be admitted. The hearing can thereby be expedited, which saves all parties both time and costs. Stephen has always found that more can be accomplished by being collaborative in the process and not creating unnecessary roadblocks or impediments.
Collaboration around disclosure around disclosure and evidence gathering
We then turned to collaboration around disclosure and evidence gathering.
Vice-Chair Registrar Smith spoke to the importance of the quality of pre-hearing workup. Litigation by surprise is not how the Tribunal works. Any surprised party can seek an adjournment to prepare, and depending on the circumstances, it may well be allowed. So, the impact of last-minute disclosure could include adjournment. And potentially there could be a lengthy wait for a rescheduled hearing.
Maryth stated that she works hard to prepare cases well in advance and to provide disclosures as soon as possible. She strongly believes in being proactive by advising the Tribunal of new evidence, or of issues we don’t plan to pursue, as early as possible. This is good advocacy because the decision-maker can understand our story early on and doesn’t feel surprised.
Maryth appreciates the Tribunal’s reasonable and fair approach to late-arising evidence when it can’t be avoided. This is because the more vulnerable the client, and the less well-resourced the representative, the harder it can be to gather evidence as early as we would like. Most worker representatives cannot find or afford expensive doctors to do IMEs, for example, so have to wait for years for opinions from OHCOW. Our clients often don’t have family doctors and so we struggle to gather medical evidence to show continuity. Our clients are often in crisis, dealing with concurrent issues like eviction, precarious or no immigration status, and mental health crisis. Most of our clients don’t speak English as a first language. Most are racialized. All are low-income. Many have little family support. So, they struggle to help us gather evidence we need.
Stephen emphasized that timely preparation is extremely important and should not be left to the week before the hearing. The file should be thoroughly reviewed and all evidence to be relied upon should be clearly outlined in the Hearing Ready Form (under the new pre-hearing process). In addition, properly completed “Will Say” statements should be provided for any witnesses being called. For most of his WSIAT hearings he has usually attended the WSIB hearing as well and prepared a written submission which outlines his position on the issues objected to and the evidence to be relied on. Therefore, there are no surprises for the Tribunal or opposing party. Parties should disclose all evidence they will be relying upon as soon as it becomes available to them and ideally with the new Hearing Ready Form. Under the new changes to the WSIAT appeal process this is now required in the Hearing Ready Form.
Mediation and ADR
Stephen reported that mediation and ADR are not too common in his practice, but he does participate in it from time to time. Sometimes the issue is not one that can be mediated, but he takes the time to review the file to determine if it is suitable for mediation.
He has sometimes used ADR techniques when the case is going to hearing, even at the hearing stage, which has allowed the case to settle without a hearing.
Stephen also noted that he has spoken with other representatives who have found that Mediation/ADR can be very helpful in certain appeals and should be expanded and used as often as possible to not only resolve appeals but clarify or simplify issues, facts, and any other interim procedural issues, to avoid unnecessary adjournments and expedite hearings.
Because of the nature of her practice, with few two-party cases, Maryth has only participated in one party ADR. She has found the ADR process to be useful. Sometimes she has been able to achieve more expedited resolutions of the appeal. Other times this has been an opportunity to understand more clearly the weaknesses in a case, by discussing it with an ADR Dispute Resolution Officer, which is helpful even if the case does not settle.
Maryth will recommend mediation in most cases. Some workers may not want to risk delay and may refuse, and the WSIAT doesn’t consider all cases suitable. But we generally recommend it because it has no downside risk and can have good outcomes. It is important to note that you need to prepare for a mediation session in a serious way. You need to know the case well going in to be able to advocate for a fair resolution and answer questions and concerns from the Tribunal ADR team.
Issue identification
As members of our Section know very well, issue identification can be a challenging issue. There are often multiple appeal issues in cases that reach the WSIAT.
The Tribunal tries to work with the parties before the hearing to ensure that the issues identified for hearing are correctly and accurately stated. In the new pre-hearing process, the Tribunal confirms the issues pre-hearing in the Issues on Appeal letter (not in the Hearing Ready Letter as under the old process). The parties then confirm their understanding of the Issues in the Hearing Ready Form.
Vice-Chair Registrar Smith emphasized that the Tribunal expects you to carefully read the Issues on Appeal letter and confirm your understanding of the issue agenda based on this careful reading. She understands that when documents routinely include similar information there can be a tendency to skim them or not read at all. That said, she stated that a main takeaway from this program is that the Tribunal expects the representative to read the Issues on Appeal letter and confirm their understanding of the issue agenda in the Hearing Ready Form.
When issues about the issue agenda are not identified until the hearing, that can lead to delays, in the hearing itself, and even to adjournment.
If there is a concern about the issue agenda set out in the Issues on Appeal letter those can be raised pre-hearing – a request can come to the Vice-Chair Registrar to rule on the issue agenda or with the hearing Vice-Chair/Panel as a preliminary issue – with the caveat that residual discretion on issue agenda always lies with the hearing Panel or Vice-Chair.
That said, it is better to raise concerns early – so that she can rule, or the Tribunal can assign an early Vice-Chair/Panel if that is appropriate in the circumstances or in the more complex multi dispute cases schedule a prehearing conference.
Stephen emphasized that the representative should be knowledgeable about the file and appeal and properly confirm that the issues have been correctly stated in the Issues on Appeal letter. It is best to clear this up in the phone call with WSIAT before the hearing rather than try to revise it at the hearing. If there are numerous issues take the time to review the file carefully to ensure issues have been properly identified. If a party is not going to pursue an issue, they should inform the WSIAT and the other parties as soon as possible so as not to waste the time of others preparing for an issue that is going to be withdrawn.
Maryth agreed that it is important to review the Issues on Appeal letter when received and to treat the issues as framed in that letter as the foundation or framework of your case. If there are any inaccuracies, it’s important to clarify it as soon as possible because the Panel or Vice-Chair will expect that they are correct.
Outstanding issues at the Board and the Tribunal’s jurisdiction
The WSIAT does not have the jurisdiction to hear appeals where there is no final decision from the WSIB. This leads to jurisdictional questions and issues in some cases.
Vice-Chair Registrar Smith emphasized that the Tribunal wishes to resolve any questions of outstanding issues at the Board, before the hearing. This to avoid adjournments and use the hearing time for hearing the appeal.
Don’t let these issues languish. Advise the Tribunal about them and notify the other party. The parties’ positions will be considered but the final determination will be made by the Tribunal about whether an outstanding issue has to be concluded before proceeding with the appeal.
Vice-Chair Registrar Smith noted that it’s important to be aware that under the new process – if the hearing has been scheduled, and you then discover an outstanding issue at the Board or want to add an ARO decision – this will result in a cancelation of the hearing date and a return to the disclosure period stage in respect of that ARO decision. For that reason alone, it’s very important to resolve all related outstanding issues at the Board before the matter is referred to Scheduling.
Maryth confirmed that this arises frequently in her practice. She tries to identify all issues in the file. It is common for her clinic’s clients to have multiple accidents or long-standing claims. The Navigator role that we heard about could be important for helping self-represented parties with this.
Stephen experienced this situation somewhat differently because his clients are different from Maryth’s. He is able to explain to his clients how to strategically appeal. They are usually larger entities with more organizational resources. And their other wish is to keep the costs down. There are strategies in determining the best time to move forward with the appeal. Often there are time periods and appeal time limits involved, which must always be observed.
Agreed statements of facts and agreements regarding the evidence
Vice-Chair Registrar Smith agreed that these can be useful in cases with a lot of evidence, occupational disease, or batch cases. Not all Vice-Chairs/Panels will have the same level of comfort with agreed statements of facts.
She outlined some of the problems in litigation that agreed statements of facts can avoid This includes lengthy witness testimony if the facts can be identified and supported in the documentary record -including from discovery transcripts. A clear layout for the panel of chronology and relevant facts will be particularly helpful in large, complex, old files. Helping to sort out important facts makes more efficient use of hearing time and resources
Remember that the Agreed Statements of Facts must always link back to the evidence itself. No Vice-Chairs/Panels at the Tribunal will accept or adopt an Agreed Statements of Facts that is not supported by the evidence before the Tribunal.
Vice-Chair Registrar Smith had some important remarks about the need for clarity about what is meant by a “fact”. For example, whether or not a person is a worker in the course of employment is an adjudicative determination that is supported by facts, which the parties may agree on, but the final conclusion about whether the facts establish whether a worker is in the course of employment is for the hearing Vice-Chair/Panel to decide. So, when putting together an agreed statement of facts, remember to set out facts that support the conclusion rather than the conclusion itself.
Stephen reported that it is rare for him to enter into an Agreed Statements of Facts, but he has done it in some cases.
In a volunteer firefighter case, there was no dispute between the parties regarding some of the key facts in the case. To expedite the process, we were able to agree to certain facts, and that was useful for the process.
Also, regarding facts that may or may not be in dispute, there are times when I will concede a fact is true right at the hearing. This makes the hearing process better for everyone, because the parties and the decision-maker can focus on what is really in dispute.
In right to sue cases, it is very common to end up with an Agreed Statements of Facts.
Maryth stated that at her clinic, they do not do a lot of Agreed Statements of Facts.
This is mainly because they do mostly one-party hearings.
Maryth is very interested, however, in narrowing the issue agenda to get rid of issues that don’t really need to be addressed. This applies whether there is an opposing party or not.
Conclusion
As you have seen, this program was packed with vital information and tips from Tribunal staff and adjudicators and worker and employer representatives who value and advocate for collaboration and civility in our area of law. Impressive progress has been made and there are now many examples of how well this can work for all concerned. We hope to continue to build on this in the years to come. Thank you to all of our presenters for the work and thought that they put into this important program.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.