Highlights of Noteworthy Decisions

Decision 2530 11 I2
S. Martel - M. Christie - A. Grande
  • Procedure (production of documents) (confidential information)
  • Evidence (admissibility) (deemed undertaking rule)

The employer of a bricklayer was appealing a decision of the Appeals Resolution Officer denying transfer of costs of a claim relating to an accident when a bucket fell from a crane and struck and demolished the scaffolding on which the worker was working. The employer was alleging negligence of additional parties who were not involved in the appeal before the ARO. In Decision No. 2530/11I, the Panel found that the Tribunal did not have jurisdiction over what was a substantially new issue that was not considered by the ARO. The Panel concluded that the hearing would proceed regarding the alleged negligence of the crane operator and the site co-ordinator.

The Panel now considered the objection of one of those additional parties regarding production and admissibility of documents.
The employer had filed a number of documents which it had obtained as part of a civil action pertaining to the same accident. One of the parties to that action, who was no longer a part of the current appeal as a result of Decision No. 2350/11I, requested that all documents from the parallel civil proceedings, including affidavits of documents, discovery transcripts and mediation memoranda, be excluded from the case materials in respect of the employer's appeal.
The parties referred to the Rules of Civil Procedure, particularly regarding confidentiality of mediation communications, the deemed undertaking rule and the use of materials in subsequent proceedings after discontinuation of an action. The Panel noted that the Rules of Civil Procedure do not apply to Tribunal proceedings but may serve as helpful guidelines.
The deemed undertaking rule prohibits parties from using evidence or information for any purpose other than that of the proceeding in which the evidence was obtained. Tribunal decisions have found that a Tribunal right to sue application occurs in the context of an ongoing court action and should not be considered a separate proceeding. The current appeal, however, is not a right to sue application. There is a parallel action in the courts initiated by a plaintiff who has never been a party to the current Tribunal appeal. The Panel concluded that the current Tribunal appeal is a separate proceeding. Many of the parties to the action are not parties to the current appeal. Accordingly, even if not bound by the deemed undertaking rule, the spirit of the rule should be recognized, particularly with regard to any documents obtained by the remaining parties from parties who are no long (or never were) part of the Tribunal appeal. This would similarly apply to transcripts of examination of discovery of witnesses other than parties to this appeal.
Information obtained during the course of mediation conducted in the civil proceeding should also be excluded from the case materials.