Ontario Government | Ministry of Labour | Site Map | Accessibility| text resize: A A A<

Home | About Us | OWT Library | Forms | Practice Directions | Decision Search | Contact Us | Français

Questions | Decisions | Appeal Process | For Representatives | Finding a Representative
Documents & Publications | Legal/Medical Resources | Popular Topics | Links to Other Agencies

Current Announcements

Announcements Archive

Receive WSIAT News Using RSS RSS

Workplace Safety and Insurance Appeals Tribunal (WSIAT)
COVID-19 Interim Practice Guideline – Objections to Alternative Hearing Methods

The WSIAT has postponed in-person hearings to support the province-wide effort to stop the spread of COVID-19.  Alternative hearing methods are being offered to parties to prevent undue delay in having their matters resolved by the WSIAT.1  Alternative hearing methods include teleconference, written submissions, or videoconference. This Interim Practice Guideline sets out the Tribunal’s approach to objections to alternative hearing methods during COVID-19.

Statutory provisions

Pursuant to subsection 124(3) of the Workplace Safety and Insurance Act, 1997 (the WSIA), the WSIAT may conduct hearings orally, electronically, or in writing.  Section 131 of the WSIA provides the WSIAT with broad discretionary powers to determine its own practice and procedure in relation to proceedings, among other things. 

The Government of Ontario passed Bill 188, Ontario’s Economic and Fiscal Update Act, 2020, which received Royal Assent on March 25, 2020.  Schedule 3 to the Act, the Hearings in Tribunal Proceedings (Temporary Measures) Act, (the “HTPA”) came into force on the same date.  With the passing of the HTPA, the Government has made it clear that the public must continue to have access to justice through administrative tribunals during the COVID-19 pandemic.

Pursuant to the WSIA, the WSIAT is already empowered to do most of what the HTPA authorizes. The HTPA provides tribunals with the broad power to control the nature of their proceedings with regard to process, format, and conduct. Under the HTPA, a tribunal may conduct a hearing in person, electronically, in writing, or by a combination of these methods, as deemed appropriate by the tribunal. Furthermore, the HTPA provides tribunals with the power to make any orders or give any directions that it considers appropriate in the circumstances regarding the format and conduct of the hearing, as well as any ancillary matters regarding notice of the hearing, the service or filing of materials, attendance at the hearing, and any recording or public access related to the hearing.

Highlights of relevant case law

The duty of fairness does not require an oral hearing in every case.2 A number of recent decisions of the Courts and Tribunals have favourably considered alternative hearing methods during the COVID-19 crisis.3  As acknowledged by Justice Myers in the decision Arconti v. Smith4, being able to use readily available technology is part of the basic skill set required of representatives and courts in the year 2020.  Concerns about using technology or being uncomfortable with such resources do not outweigh the desirability of proceeding with a matter and do not justify unnecessary delay.5 Further, as Justice Paciocco wrote in the decision of Carleton Condominium Corporation No. 476 v. Wong6, in which he ordered an appeal to proceed in writing (with certain conditions), that the appellant’s preference for an in-person hearing might be understandable, but it was not necessarily required in the interests of justice. He also wrote that it was not in the interests of justice to adjourn matters that could be fairly dealt with as scheduled, so as to not further contribute to the backlog of cases that must be adjourned.7

WSIAT’s approach to Alternative Hearing Methods during COVID-19

During the COVID-19 pandemic, the Tribunal is committed to providing access to justice: proceedings should not be delayed any more than is necessary. Accordingly, during this period when in-person hearings have been suspended, whenever possible, in-person hearings will be converted to hearings in writing or by teleconference, and as noted below, videoconference.  The Tribunal’s experience with utilizing alternative hearing methods (teleconference and written, or resolved by alternative dispute resolution) both during and before COVID-19 has been positive and has allowed for successful hearings (or alternative dispute resolution as the case may be) with few difficulties. 

Effective June 8, 2020, all scheduled in-person Tribunal hearings will be converted to teleconference hearings unless the Manager, Scheduling Administration is satisfied an alternative hearing format is appropriate.  An objection to the hearing format will not be accepted as a sole basis for an adjournment.  Objections to the hearing format will be addressed by the Vice-Chair or Panel at the teleconference hearing.  Parties should be prepared to proceed with the teleconference in the event their request for an alternative hearing format is denied by the Vice-Chair or Panel.  Only in rare circumstances will it be necessary to delay a matter to allow for an in-person hearing when the Tribunal’s offices re-open. 

The Tribunal is also exploring videoconference as an alternative hearing method.  Parties should advise the Tribunal if they have the technological capability to participate in a videoconference hearing. 

Factors to consider in addressing objections to Alternative Hearing Methods

In addressing a party’s objection to proceeding by teleconference (or videoconference, as the case may be), the Vice-Chair or Panel  will balance and weigh the interests of the parties and the Tribunal’s interests in not delaying the proceedings, and make a decision as to whether the matter can proceed fairly via an alternative hearing method.

Some of the factors that may be considered by the Vice-Chair or Panel to determine whether there is a reason why the teleconference (or videoconference) would not permit a fair hearing include:

1 There are a variety of resources available on the WSIAT website (www.wsiat.on.ca) including “Best Practices and Teleconference Hearing Information for Representatives and Parties.”

2See, for example, Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), in which Justice L’Heureux-Dubé wrote that an oral hearing is not always necessary to ensure a fair hearing and consideration of the issues involved, but rather, “[t]he flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations.”  Oral hearings can take place in person, but also include hearings via teleconference or videoconference.

3For example see Mitchell Hutchinson v Point Farms Provincial Park, 2020 CanLII 25912 (ON LRB); Labourers' International Union of North America, Ontario Provincial District Council v Berkim Construction Inc., 2020 CanLII 27468 (ON LRB); Carpenters' District Council of Ontario, United Brotherhood of Carpenters and Joiners of America v Blythwood Homes Inc., 2020 CanLII 30888 (ON LRB); Labourers' International Union of North America, Local 183 v Bloomfield Developments Inc. and/or Bloomfield Homes Inc., 2020 CanLII 31657 (ON LRB); AMAPCEO v Ontario (MAG) GSB #2018-1346 (unreported); Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA); Lakeridge Health Corporation v Ontario Nurses’ Association, 2020 CanLII 31785 (ON LA); and TDSB v OSSTF Grievance 18-004 (unreported). We also note that there are resources available on the Council of Canadian Administrative Tribunals (http://ccat-ctac.org/en/home) website pertaining to COVID-19.

42020 ONSC 2782.

5Ibid. at paras. 33 and 43 to 44.

62020 ONCA 244.

7Ibid. at paras 5 and 7.