Highlights of Noteworthy Decisions

Decision 821 17 R
17/12/2020
G. Dee
  • Hearing (witness questioned by Panel)
  • Reconsideration (natural justice)
  • Hearing (conduct of hearing)

The worker applied for reconsideration of Decision No. 821/17.

The worker submitted that the original vice-chair became more of an advocate for the employer than an impartial adjudicator.
The Vice-Chair noted that the role of the Tribunal is more inquisitorial than many administrative tribunals. The Vice-Chair noted various provisions in the WSIA, as well as the practical matter that many parties appear before the Tribunal without representation and, in many cases, an employer whose interest is directly affected may not appear at all.
As a result of the Tribunal's investigative function, adjudicators can, and often do, intervene in the hearing process to ask questions of witnesses.
The Vice-Chair reviewed the recording of the original hearing. The original vice-chair was very active in asking questions of the worker, likely more active than is common. However, the original vice-chair did not interfere with the ability of the worker's representative to present his case. A full opportunity for a full oral opening and written closing argument was provided without substantial interruption. The worker's representative was also allowed the opportunity to complete his direct examination of the worker in the manner he saw fit without significant interruption.
The worker was not the easiest witness to examine. There were times even in direct examination when the worker had to be reminded by his representative and the original vice-chair to listen to and answer the questions that were put to him.
The Vice-Chair did not note any particular concern with the manner in which the original vice-chair asked the questions that she did. The hearing was a one party appeal and there was no opposing party present to ask questions of the worker about potential contradictions and gaps in his testimony. The large number of questions asked was not, by itself, a matter that resulted in an unfair hearing.
The application to reconsider was denied.