Highlights of Noteworthy Decisions

Decision 1111 21 I
E. Smith
  • Adjournment (lack of time)
  • Procedure (interim decision)
  • Procedure (production of documents)
  • Right to sue

There was insufficient time to complete the hearing regarding this right to sue application, and the hearing was adjourned pending a reconvening date. However, a procedural issue arose which was addressed in this interim decision, regarding whether the Tribunal should obtain from the Board the relevant portions of the firm file for the interested party, prior to the reconvening of the hearing.

It was found that the Vice-Chair had the authority under section 132 of the WSIA to obtain the Board firm file for the interested party.
Section 131 of the WSIA provides that the Tribunal has the authority to determine its own practice and procedure. Section 132 states that the Tribunal has the authority to require the production of documents. For an appeal, the WSIB is required under section 125(4) of the WSIA to provide records relating to the appeal to the Tribunal. It was submitted that the Tribunal has the same power in a section 31 application to determine its own practice and procedure, and thus, the Vice-Chair had the power to order the TCO to forward the materials to the Vice-Chair and the parties. The Vice-Chair accepted that any privacy issues could be mitigated through the receipt of written undertakings from the parties - that they will not divulge the particulars of the information in the firm file that is to be shared, except for workplace insurance purposes.
It was noted that the file was likely to provide objective evidence of past practice that was relevant to the application, including whether the applicant was a worker or an independent operator during the relevant time period. It was noted that it is common practice for the Tribunal to rely on objective contemporaneous documentary evidence about issues when that evidence is available. No specific prejudice or privacy issues arising from the information were identified.
Section 126 of the Act, requiring that the Tribunal apply Board policy, does not directly apply to applications as distinct from appeals. However, Tribunal decisions have noted that the facts pertaining to those matters (i.e. pertaining to worker status) may come before the Tribunal for adjudication in different ways. The issue of worker status may be relevant to an application under section 31. When considering the application of Board policy, Tribunal decisions have found that consistency in decision making is important, and that it is appropriate for the Tribunal to consider Board policy in a section 31 application, despite the fact that the Tribunal is not subject to the provisions of section 126(1) of the Act in that circumstance.