Highlights of Noteworthy Decisions

Decision 48 21 I
19/03/2021
G. Dee - M. Falcone - M. Ferrari
  • Estoppel
  • Procedure (disclosure of evidence)
  • Three week rule

The worker in this appeal claimed that he developed a psychological condition as a result of events that occurred at work when he was exposed to potentially dangerous low levels of oxygen while working in a utility hole. He also claims that his psychological condition was worsened by subsequent events at work. The worker's claim for Traumatic Mental Stress (TMS) was denied at the Board.

In addition to workers' compensation proceedings, the worker and employer were also involved in an arbitration proceeding concerning grievances filed by the worker against the employer. There were 25 grievances in all including a grievance regarding the worker's dismissal by the employer. All these grievances were ruled upon in an arbitrator's decision.
This interim decision addressed two issues: issue estoppel with respect to a prior arbitrator decision and the employer's late filing of the Confirmation of Appeal (COA) form within three weeks of the scheduled hearing date.
The employer claimed that there was issue estoppel given the prior arbitrator decision and therefore the claim for TMS could not proceed. The worker accepted that the arbitrator's decision was a final decision involving the same parties who were parties in the present appeal. The worker submitted however that issue estoppel did not apply as the matters being determined in the appeal were different from the arbitrator's decision.
Under the terms of WSIB policy on chronic mental stress a finding of whether harassment, or other inappropriate employer activities took place may be relevant to a determination of whether a worker has entitlement for a chronic mental stress injury. However, a successful claim may still exist under the WSIB's chronic mental stress policy in the absence of harassment.
The Panel accepted the finding of the arbitrator that no harassment, discrimination, or similar activities (as considered by the arbitrator) were participated in by the employer or its staff. Those findings were essential to the determination of the worker's grievances. The Panel found that the extent to which similar determinations needed to be made in the worker's present appeal at the Appeals Tribunal, in order to deal with the worker's chronic mental stress appeal, issue estoppel applied and the Panel and the parties were bound by those findings.
The Panel therefore ruled that it would not receive evidence and argument not already in the case record intended to challenge the findings of the arbitration decision that the employer did not engage in harassing, or discriminatory, etc. conduct against the worker as described within the arbitrator's decision. The Panel ruled further that if the worker wished to continue the pursuit of his claim for chronic mental stress despite the restrictions described above, the worker would have 8 weeks from the date of this decision to identify the types of workplace stressors the worker was exposed to that were excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances and that caused him to experience a psychological condition.
With respect to the employer's filing of the COA, The Panel noted that Practice Direction Confirmation of Appeal and Hearing Ready Letter provided that a respondent must complete and file a COA form within two weeks after it receives the appellant's completed COA form.
The employer submitted that in the past it had filed COA forms three weeks before the hearing date within compliance of the three week rule.
The Panel accepted that the Tribunal's Practice Direction titled Disclosure of Witnesses and the Three Week Rule contemplates the disclosure of evidence and witness information up to three weeks prior to the date of hearing. However, it does so only with the expectation that the parties have already fulfilled their disclosure obligations to the extent that they could with the earlier filing of Confirmation of Appeal forms. The Panel noted that both the Practice Direction respecting the COA form and the COA form itself make clear that the requirement to submit the COA along with supporting evidence within two weeks after receipt of the appellant's COA form replaced the Tribunal's former requirement for parties to submit evidence at least three weeks before the hearing. Parties would only submit evidence at the three-week date if it was not reasonably available or obtainable earlier. New evidence submitted after the three-week deadline would not be placed before the Vice-Chair or Panel.
Despite raising these concerns the Panel accepted into evidence the documents submitted by the employer along with its Confirmation of Appeal form which was filed late according to the COA Practice Direction.