Highlights of Noteworthy Decisions

Decision 1771 19 I
P. Allen - M. Trudeau - A. Kosny
  • Parties (representation) (conflict of interest)

The worker and employer were appealing decisions of the Board regarding accidents in 2004 and 2005.

Prior to the start of the hearing, the worker's representative advised that she had been employed by the Board as an Appeals Resolution Officer and that, while serving in that role, she had a brief interaction in 2006 with the person who was the worker's representative at that time. She spoke with the then representative, who advised that the worker was withdrawing an appeal.
In this decision, the Panel considered whether the worker's representative had a conflict of interest and whether she should be disqualified from representing the worker.
The employer submitted that there was a conflict of interest, relying on Decision No. 161/92. The Panel noted Decision No. 161/92 excluded the employer's representative because of an unfair situation in which the employer's representative had a detailed knowledge of the worker's claim file, having adjudicated the claim in his former capacity as a Board employee; as the issue under appeal was the release of medical records in the claim file to the employer, it was determined that this detailed knowledge put the employer's representative in the position of knowing the contents of the claim file. The Panel distinguished Decision No. 161/92, as in this case, both representatives have a copy of the case file, so that there is a level playing field, and the worker's representative does not have an unfair advantage as a result of his previous role as an ARO.
The Panel also reviewed other Tribunal decisions regarding possible conflict of interest of a former Board employee acting as a representative. Based on factors identified in those cases, the Panel found that, in this case, there would be no use of confidential information from the time the worker's representative was at the Board, reasonable mobility in the legal profession should be promoted, the worker should not be deprive of his choice of counsel, and the prior involvement in the claim as an ARO was so minor that it did not raise concerns in relation to the integrity of the justice system.
The Panel concluded that there was no conflict of interest. The representative may continue to represent the worker.