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Why is WSIAT an Expert Tribunal

When people describe the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) as an expert tribunal, they usually mean it in one of two ways.

1. The Courts Recognize WSIAT was Created to be an Expert Tribunal

First, WSIAT is often described by the Courts as an “expert” tribunal, or having “specialized expertise” (see Canada Post Corp. v. Smith [1998] O.J. No. 1850 (ONCA) at para 22, 47; Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2008] O.J. No. 2150 (ONCA) at para 24, 32; Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal [2008] O.J. No. 4103 (ONCA) at para 10, 23).

That is important because the Supreme Court of Canada has set out a test to determine how much deference courts should give decisions of adjudicative tribunals like WSIAT (Dunsmuir v New Brunswick, [2008] 1 SCR 190). A key component of that test is the expertise of the tribunal whose decision is being reviewed.

In Dunsmuir the Supreme Court quoted Professor David Mullan, a highly respected authority in Canadian administrative law (and who is also a WSIAT vice-chair) that a policy of deference

"recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. (Dunsmuir supra at para 49)

The Ontario Legislature, through the Workplace Safety and Insurance Act, has given WSIAT exclusive jurisdiction over appeals from final decisions of the Workplace Safety and Insurance Board (WSIB). In Rodrigues the Ontario Court of Appeal noted the Legislature has given the Tribunal “the toughest privative clause known to Ontario law” (Rodrigues v Workplace Safety and Insurance Appeals Tribunal supra at para 22). This means the Legislature has designated WSIAT as the body with expertise to deal with all appeals within the workplace safety and insurance law system. Therefore, courts can only interfere with a Tribunal decision where it is clearly irrational (Rodrigues at para 22).

WSIAT’s recognized expertise is a major reason why in its twenty-eight year history WSIAT has only had one decision overturned by the Courts on judicial review.

2. WSIAT Adjudicators are Experts

The other reason WSIAT is considered to be expert is because of how WSIAT adjudicators are selected and trained for their positions.

a) The Appointment Process


The Ontario Public Appointments Secretariat (“PAS”) oversees the initial recruitment of all appointments to Ontario tribunals, including WSIAT. WSIAT adjudicators consist of full-time and part-time vice-chairs, as well as members appointed from the worker side and from the employer side. Once approved, all WSIAT adjudicators are appointed by Order of the Lieutenant Governor in Council, so they are referred to as Order-in-Council appointees, or “OICs”.

Candidates interested in becoming a WSIAT adjudicator must apply through the PAS. There are general principles in PAS’s recruitment to ensure that appointments to WSIAT follow a merit-based process, and that openings are advertised publicly. The PAS screens candidates to ensure they have high personal and professional integrity and are free from conflicts of interest, in order to serve the public. In WSIAT’s case there are also specific educational, professional and employment backgrounds which the candidate must identify.

As advertised on the PAS website, WSIAT appeals “involve novel, complex and contentious issues (e.g. occupational disease and other complicated medical claims, return-to-work disputes, disputes involving lengthy periods of benefits, employer penalties, and employer assessments).” Requirements for WSIAT vice-chairs and members include experience in interpreting and applying legislation, an understanding of the social and professional communities the OICs serve, an understanding of the justice system and administrative law and the concepts of fairness and natural justice.

As a practical matter, most WSIAT vice-chairs are lawyers. WSIAT worker and employer members are drawn largely from the ranks of individuals with significant labour or management side experience in a field relevant to workplace safety and insurance law.

Once vetted by the PAS, a candidate’s application is then forwarded to the WSIAT Chair via the Ontario Minister of Labour. The WSIAT Chair must recommend all appointments to WSIAT.

Unlike many tribunals, WSIAT Vice-Chair candidates are required to undertake a challenging written exam to test their analytical, comprehension and writing abilities. Only candidates who achieve high scores on the exam are eligible to be recommended for appointment by the WSIAT Chair.

Candidates recommended for appointment are approved by the Minister of Labour and then referred to Cabinet. If approved by Cabinet, a candidate may also be required to appear before a Legislative Committee: the Standing Committee of Government Agencies (“Standing Committee”). There, candidates may be questioned by MPPs on their qualifications. The Standing Committee then informs the Legislature about whether it concurs with the appointment of the candidate.

Successful candidates must then be approved by the Ontario Cabinet, and appointed by order of the Lieutenant Governor in Council.

b) Initial Training of WSIAT OICs


Once appointed, OICs undergo an extensive training program conducted by WSIAT lawyers, with additional training from doctors, nurses, and senior WSIAT administrative staff. This training starts with an initial four weeks of classroom instruction at WSIAT, followed by a requirement to observe a number of WSIAT hearings.

The subject matter of workplace safety and insurance law is quite complex. WSIAT adjudicators must be familiar with prior versions of workplace safety and insurance legislation that are applicable to appeals. They must be familiar with the WSIAT case law, now consisting of over sixty-two thousand decisions, all available and indexed on WSIAT’s public web site. WSIAT has over thirty Practice Directions which describe procedural rules for WSIAT appeals. There are extensive Board policies which WSIAT adjudicators are required to apply. WSIAT OICs also spend considerable time receiving instruction on medical concepts and terminology, and learn to assess and weigh the body of highly technical medical evidence in the context of workplace safety and insurance law.

Quite apart from expertise in workplace safety and insurance law and policy, WSIAT has always stressed that its adjudicators receive detailed instruction on the principles of administrative justice. They must be familiar with WSIAT’s commitment to a fair and transparent process, as outlined in WSIAT’s Members Code of Conduct.

Following initial training, but prior to conducting any hearings, all new WSIAT vice-chairs must write a sample written decision, which is reviewed and critiqued by WSIAT staff lawyers in the Office of Counsel to the Chair. WSIAT OICs also attend the Adjudicator Training Program developed by the Society of Ontario Adjudicators and Regulators (SOAR).

The goals of the practical training system are to provide newly appointed vice-chairs with the skills of an experienced adjudicator, including:

c) Decision-Making Model of WSIAT


WSIAT hearings are held either by a vice-chair sitting alone, or by a three person panel consisting of a vice-chair, a worker member and an employer member.

Newly-appointed WSIAT OICs are paired with an experienced WSIAT OIC “mentor”. The assigned mentor provides feedback to the newly appointed OIC and assists in the development of the OIC’s professional skills as an adjudicator. One of these skills is the ability to collaborate effectively with colleagues in a tripartite decision-making environment.

d) Follow-Up Training of WSIAT Adjudicators


In addition to the initial training which all WSIAT Adjudicators undergo, there is follow-up training at the six month and one year mark after an OIC’s appointment. This training covers more complex legal and process issues in further depth, as by this point the OICs are able to understand the context of their role in view of their hearing and decision-making experience.

Training at WSIAT is an ongoing requirement throughout the career of an OIC. There are many training opportunities offered at WSIAT on medical and legal issues, ranging from informal lunch-time lectures to three full-day medical/legal training sessions per year. Further, all OICs are placed in “Teams”. Each Team is led by an experienced OIC Team Leader. All Teams meets on a regular basis, allowing OICs to discuss common legal and process issues with their colleagues in a small group setting.

e) Resources Available to WSIAT OICs


Once appointed, WSIAT OICs have a wealth of resources to assist them in writing their decisions. Appeal “case records” are prepared by WSIAT legal workers before the hearing. These legal workers make sure the file is complete. They work with the parties before the hearing to define and focus the issues under appeal.

At the hearing OICs may receive assistance from lawyers in WSIAT’s Tribunal Counsel Office (TCO). TCO lawyers can attend hearings to question witnesses, and make oral or written submissions on complex legal and procedural issues. WSIAT’s Medical Liaison Office can provide access to the best medical specialists in Ontario, enabling WSIAT vice-chair or panels to request a written report on complex medical issues which arise in an appeal.

Since WSIAT’s mandate is investigative rather than adversarial, WSIAT OICs may request further evidence be obtained prior to writing a decision, to assist in “getting it right”. After the hearing WSIAT OICs may ask WSIAT lawyers in the Office of Counsel to the Chair to assist in reviewing drafts of the decision.

In addition, all of WSIAT’s over sixty-two thousand decisions are indexed and searchable on WSIAT’s public web site. WSIAT’s web site also contains significant adjudicative resources. One such resource is the highly regarded WSIAT Medical Discussion Papers. These Discussion Papers are written specifically for laypeople on a variety of medical topics encountered in WSIAT appeals, by some of the most outstanding medical experts in Ontario.

f) WSIAT Expectations of Adjudicators


WSIAT adjudicators are held to a high standard. WSIAT’s Members’ Code of Conduct is designed to ensure quality adjudication by WSIAT OICs. The Code sets out the standards of conduct governing the professional and ethical responsibilities of WSIAT OICs in the conduct of hearings and decision-making. It also describes the institutional responsibilities of OICs to their colleagues, to the WSIAT Chair, and to WSIAT itself. WSIAT OICs are required to ensure that their decisions are rendered in a timely manner, and to not ignore relevant Tribunal decisions on the same point. In addition OICs are expected to adhere to WSIAT’s “Hallmarks of Decision Quality”.

3. Recognition of WSIAT’s Work

WSIAT’s expertise has been recognized by the legal community, as well as stakeholders in the workplace safety and insurance system. At WSIAT’s 25th Anniversary Symposium, held in October of 2010, counsel and stakeholders from the employer community, the injured worker community, the WSIB and the judiciary all shared in the view that WSIAT is a highly regarded adjudicative tribunal deserving of respect and trust.

At that symposium Justice John Laskin of the Ontario Court of Appeal highlighted WSIAT’s near perfect record on judicial review. He described WSIAT as one of the most important administrative tribunals in Ontario, and stated that it was fair to say that WSIAT has earned the confidence of the Courts.

David Mullan, who as noted earlier is Professor Emeritus from Queen’s University Law School, a WSIAT Vice-Chair, and one of the foremost experts on Canadian Administrative Law, spoke about WSIAT’s highly regarded reputation for predictability and consistency in decision-making. Professor Mullan commented that WSIAT has already successfully employed a number of internal techniques to ensure consistency in its decisions, such as continuing education for adjudicators, designating certain decisions as key precedents, and the use of tripartite panels for matters where issues of particular significance arise.

Finally Mr Sid Ryan, President of the Ontario Federation of Labour, noted the tremendous success of WSIAT over the years. Mr. Ryan described WSIAT as fair, open and transparent, free from the interference of politicization and ideology, and having the confidence of both the labour and employer communities.

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