Highlights of Noteworthy Decisions

Decision 716 22 I
N. Perryman
  • Adjournment (admission of evidence)
  • Three week rule (documents)

On March 25, 2022, approximately a week before a scheduled April 6, 2022 hearing, the employer's representative requested an adjournment.

The adjournment was granted.
By way of background, on March 16, 2022, the worker's representative provided 179 pages of clinical notes with redactions. In a subsequent letter on March 17, 2022, the employer's representative submitted that it is the Tribunal that is responsible for determining what is relevant, and that the redaction of the clinical notes by the worker's representative was inappropriate. The employer's representative again requested clean copies of the medical records, which were provided on March 17, 2022, comprised only of the clinical notes which had originally been redacted.
On March 25, 2022, the employer's representative requested an adjournment. The position was that the submission of 179 pages of new evidence violated the intent of the Tribunal's disclosure rules, and the exception that evidence be submitted at the earliest possible opportunity was not applicable. In addition, there was a duplication of records which would require significant resources to determine what was new. The employer's representative submitted that they had prepared their case based on the representations made by the worker and the evidence on file. In particular, they had relied on the completed Confirmation of Appeal (COA) form, which indicated that no further information would be submitted. The worker's representative opposed the request for adjournment, stating that the records were submitted almost immediately after they were received.
The Panel found that an adjournment was necessary to ensure a fair hearing in this case. It found that the submission of a significant amount of new evidence in close proximity to the hearing date prejudiced the employer and impacted the Tribunal's ability to execute its mandate.
The Tribunal stated that it is implicit in the Practice Direction, Disclosure, Witnesses and the Three-Week Rule, that parties have already provided all available evidence with the COA. Thus, any information submitted after the COA has been completed and submitted to the Tribunal is presumed to have only become available after the filing of the COA. Accordingly, there is a clear expectation that all available documentary evidence that the parties wish to rely on at the hearing must be submitted with the COA. The Panel stated that this generous 24-month period for appellants to submit the COA further supports this expectation. The Panel noted that disclosure evidence up to three weeks prior to the hearing is contemplated; however, as per Decision No. 48/21I, this is allowed with the understanding that parties have already fulfilled their disclosure obligations to the extent that they can with the filing of the COA forms. Thus, the Panel in Decision 48/21I concluded that "the ability to file evidence in accordance with the three week rule is dependent upon a party's earlier compliance" in regards to the COA form.
The Panel noted that the worker's representative did not express an intention to provide additional material that was either in their possession or that they had planned to gather prior to the hearing. This intention was not reflected in the COA or Hearing Ready Letter. There was also no explanation as to why the medical records were not requested earlier by the worker's representative. Ultimately, this was deemed to be inconsistent with the Tribunal's rules and procedures pursuant to section 131 of the WSIA. The Panel stated that the late submission of documentation adversely impacted the fairness of the proceedings before the Tribunal and its ability to fulfill its mandate. While the materials were sent within the timelines specified in the Practice Direction, the Panel agreed that the purpose of this rule was not intended to be used in the way put forth by the worker's representative in this case. It did not provide the employer's representative with sufficient time with which to meaningfully review the new material or identify the duplicated records.
The Panel found that an adjournment was required in these circumstances. It was found that the voluminous material submitted was not in keeping with the intention and spirit of the Tribunal's Practice Directions, and had resulted in prejudice to the employer that could only be remedied by an adjournment. The worker's representative was also ordered to provide a complete clean copy of the medical records, and to identify the duplications with page numbers outlined, within two weeks of the receipt of the updated addendum.