Chapter 11: Evidence
- 11.1 Introduction
- 11.2 Types of Evidence
- 11.3 Relevance
- 11.4 Admissibility
- 11.5 Weight, Credibility and Reliability
- 11.6 Expert Evidence
- 11.7 Orders (Subpoenas) for the Production of Existing Evidence and Attendance of Witnesses
- 11.7.1 Depositions
- 11.8 Production of Evidence by the Board
- 11.9 Documents in Languages other than English
Unlike the courts, WCAT is not bound to follow strict rules of evidence. WCAT has the authority to conduct an appeal in the manner it considers necessary [s. 297(1)]. However, knowledge of the basic principles of evidence and the reasoning behind them assists panels in deciding what “weight” or importance to give to particular pieces of evidence.
While most of the information contained in this section relates more to oral hearings than to written submissions, the principles involved in weighing evidence and applying the correct burden of proof are common to both methods of appeal.
11.2 Types of Evidence
Evidence is the raw material introduced to establish the factual basis against which legal interpretation, policy, and logical reasoning will operate. Evidence includes all means of proof including oral statements, written records (documents), demonstrations, physical objects, etc. Evidence does not include argument or submissions made by a party for the purpose of persuading a panel to view the appeal in a particular way.
While the rules of evidence do not strictly apply to WCAT, the principles that underlie those rules may be relied upon when determining what weight is to be given to evidence.
Oral evidence consists of verbal statements made by party or non-party witnesses at a hearing. Documentary evidence means any form of written or printed record, including the worker’s claim file or the employer’s assessment file. Generally, documentary evidence need not be sworn as an affidavit or declared as a statutory declaration. However, it should be dated and signed by the person who made the record or statement.
Direct evidence consists of firsthand accounts of events – a report by a witness about facts perceived by the witness with his or her own senses. Hearsay evidence is any recounting by a witness of a statement, made orally or in writing by another person, when the statement is presented to prove the truth of that statement. For example, witness A stated that witness B told witness A that B slipped and fell. While the statement by witness A may be accepted to establish that witness B said that B had slipped and fell (and would not be described as hearsay evidence for this purpose), the statement by A would be hearsay evidence if A’s statement was being used to establish that B had slipped and fallen. Courts generally do not accept hearsay evidence because of its potential to be inaccurate where the credibility of the source of the evidence cannot be tested. WCAT is not precluded from admitting hearsay evidence (11.5.1), although a panel will generally give hearsay evidence less weight than direct evidence. It is always preferable for the person who perceived the event directly to provide evidence to WCAT.
Circumstantial evidence refers to evidence other than first-hand accounts of events provided by witnesses. Both the Courts and WCAT may decide cases based on circumstantial evidence.
Character evidence consists of written or oral statements concerning the personal qualities of a party. Generally, this type of evidence is relevant only where the credibility of the party is at issue. For example, character evidence would not be helpful to a panel where the appeal involves a strictly medical or legal issue.
Expert evidence consists of opinions from a witness who has the expertise to render an opinion on a particular subject. In the context of WCAT appeals, experts may include a physician, vocational rehabilitation consultant, occupational therapist, engineer, accountant, physiotherapist, or occupational hygienist. If a witness has no expert qualification in a particular area, their personal belief is merely an opinion.
WCAT may receive and accept evidence it considers relevant, necessary, and appropriate, whether or not the information would be admissible in a court of law [s. 298]. Evidence is relevant if it tends to establish the existence or non-existence of a fact in issue. Panels have no obligation to consider evidence that has no logical connection to the issue to be decided. All participants benefit from oral hearings that are controlled for relevance by allowing the maximum amount of time for addressing the essential elements of the appeal, and avoiding confusion with respect to the central issue(s).
While WCAT can admit or receive any kind of evidence, the panel may decide to intervene when clearly irrelevant evidence is being introduced. Parties should first be allowed to explain why the evidence that they are seeking to introduce is relevant or significant.
There are also some statutory exceptions to this general principle on admissibility of evidence. Panels may exclude any information that is unduly repetitious [s. 298(2)]. Notes or records kept by a person appointed to conduct an alternative dispute resolution process are inadmissible [s. 298(5)], as is anything that would be inadmissible in court based on privilege under the law of evidence [s. 298(3)]. The general rule regarding admissibility is subject to the provisions of any other statute that expressly limits the extent to which or purpose for which any evidence may be admitted or used [s. 298(4)(4)]. Other such statutes include the ATA, the B.C. Evidence Act, R.S.B.C. 1996, c. 124, the Canada Evidence Act, R.S.C. 1985, c. C-5, and the Apology Act, S.B.C. 2006, c. 19.
11.4.1 Categories of Privilege
Privilege is an exclusionary rule of evidence that entitles certain people to be exempt from giving evidence that is relevant. The evidence is excluded because there is an overriding social interest in preserving and encouraging particular relationships that exist in the community at large which are based upon confidentiality.
The recognized categories of privilege are solicitor-client, litigation, matrimonial, public interest, settlement negotiation (7.3 to 7.3.1), privilege against self-incrimination, and police informer.
Certain communications may also be found to be privileged on a case-by-case basis if:
- the communication originated in a confidence that it would not be disclosed;
- this element of confidentiality is essential to the full and satisfactory maintenance of the relationship between the parties;
- the relationship is one which, in the opinion of the community, ought to be diligently fostered; and,
- the injury to the relationship resulting from the disclosure would be greater than the benefit to be gained related to the correct disposition of the appeal.
Examples of these types of communications include doctor-patient and counsellor-client.
11.4.2 Evidence Received in Confidence
Panels may direct that all or part of the evidence, either oral or written, be received in confidence to the exclusion of parties, on terms the panel considers necessary, in the interests of the proper administration of justice [s. 42 ATA].
The rules of procedural fairness will almost always be paramount in WCAT proceedings. Thus, only in extraordinary circumstances, such as where the evidence is relevant to an ongoing law enforcement investigation, or where another statute expressly so allows, would a panel receive evidence in confidence.
11.5 Weight, Credibility and Reliability
Weight is how much evidence can be relied upon to decide the issue in question. This involves consideration of whether the evidence is believable, internally and externally consistent, plausible, and credible.
The weight or importance which panels give to the evidence is largely a matter of common sense. Direct evidence is generally more reliable than indirect (hearsay or circumstantial) evidence. Hearsay evidence may be considered unreliable as its source is not available for questioning. For example, the evidence of someone who saw something happen is better than the evidence of someone who only heard about it from someone else.
Expert evidence is generally given more weight than the opinion of a lay person. For example, a doctor’s opinion concerning the diagnosis of a worker’s condition would almost always be preferred to the worker’s own opinion. Conflicting expert opinions must be carefully examined for depth of reasoning, completeness and accuracy of medical observations and non-medical facts upon which the opinion is based, and the degree of the author’s expertise.
188.8.131.52 Leading Questions
A leading question is a question that prompts or encourages the desired answer. The following are examples of leading questions:
- You slipped and fell on a pool of slippery grease, didn’t you?
- And the next thing that happened was that you heard a pop in your lower back, correct?
As the British Columbia Court of Appeal said in Faryna v. Chorny,  2 D.L.R. 354, “…the real test of the truth of the story of a witness … must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
Credibility is concerned with the truthfulness of a person’s testimony. However, credibility is not the same as reliability, which is concerned with the accuracy of a person’s testimony. Thus, a credible witness may give unreliable testimony. The credibility of a witness will affect the weight given to that person’s testimony. Panels must consider whether a witness’ evidence is internally consistent, logical, and consistent with prior statements of that same witness. Panels should allow witnesses to comment upon earlier inconsistent statements. For example, where a worker’s evidence at an oral hearing is inconsistent with statements attributed to the worker in the claim file, the panel should allow the worker to comment on the inconsistency.
Reliability is concerned with the objective accuracy of a person’s testimony. Panels must consider whether a witness’ evidence is externally consistent with the other evidence, that is, consistent with the proven or undisputed facts in the case. This involves consideration of what is most reasonable and probable when the case is viewed as a whole.
In oral hearings, panels should allow witnesses to comment on externally inconsistent evidence. For example, where a worker’s evidence regarding an injury is significantly or materially inconsistent with that of a supervisor, the panel should allow the worker and the supervisor to comment on the inconsistency where it is relevant to the matter before WCAT.
11.6 Expert Evidence
Sections 10 and 11 of the Evidence Act set out the court rules for admitting expert evidence. Section 10(2) provides that sections 10 and 11 do not apply where a tribunal makes its own rules for the introduction of expert evidence and the testimony of experts.
WCAT has made its own practice directive for the introduction of expert evidence and the testimony of experts [ss. 280 and 298 WCA, and s. 11 ATA]. Where there is a conflict between WCAT’s practice directives and sections 10 or 11 of the Evidence Act, the WCAT practice directives apply. (See 184.108.40.206 for WCAT’s practice regarding reimbursement of the expenses of expert reports. See 14.1.4 for deadlines regarding submitting expert opinions to WCAT.)
The following practice directive applies to expert evidence where an oral hearing is being held. The same principles apply generally to expert evidence where no oral hearing is being held. In particular, rules (a) to (d) apply to a matter being considered by written submissions, subject to WCAT’s procedures regarding time frames for filing evidence and submissions and giving notice to other parties (13.1 to 13.1.2).
- Expert opinion evidence will only be accepted from a person the panel finds to be qualified by education, training, or experience as an expert in the field or discipline in which they are giving their opinion. In giving evidence to the tribunal, an expert has a duty to assist the tribunal and is not to be an advocate for any party.
- The qualifications of the expert should be stated in writing with the expert’s report. Such a statement of qualifications will generally be accepted as evidence of those qualifications. A job title (such as Board medical advisor, or vocational rehabilitation consultant) or professional designation will generally be accepted as evidence of the person’s qualifications to hold the position described by the job title. However, it does not determine the level of expertise of that person in relation to specialized disciplines.
- Objections to a person’s qualifications as an expert will not generally cause a panel to exclude that evidence, but may affect the weight given to the evidence.
- Written reports prepared by an expert are admissible without the need for the expert to attend an oral hearing. Generally, an expert’s oral evidence may not be admissible in an oral hearing unless their written report was provided to WCAT at least 21 days prior to the hearing. The correspondence requesting the expert’s written report must also be submitted.
- Where an oral hearing is held, the parties should provide written reports to WCAT promptly after receiving them so that they may be disclosed to all participants. WCAT must receive any expert’s report at least 21 days prior to an oral hearing.
- If a party does not provide an expert’s report to WCAT 21 days before the hearing, the party must provide written or oral reasons why the expert’s report was not submitted at least 21 days prior to an oral hearing. A party may also be asked to produce any supporting documentation.
- An example of an acceptable reason for a late report might be that the representative requested a medical opinion many weeks before the oral hearing, and although the opinion is dated four weeks before the hearing, the expert did not provide it to the representative until the day before the hearing.
- An example of an unacceptable reason might be that the representative had the report several weeks before the hearing, but due to late preparation, did not provide it to WCAT until the day before the hearing.
- Panels have the discretion to receive a late expert’s report at or before an oral hearing, in which case the panel will determine what steps are necessary to ensure the other participating party is given an adequate opportunity to respond. In deciding whether to receive the report, the panel will consider the reasons for the failure to submit the report at least 21 days in advance of the hearing. Where the other participating party would be prejudiced by not having had enough time to respond to the new expert evidence, the panel may:
- allow time after the oral hearing for submission of a response;
- postpone the oral hearing; or,
- provide any other relief the panel considers appropriate.
- WCAT may require an expert to attend an oral hearing if the panel believes the attendance is necessary for a fair hearing of the issues or failure to do so would prejudice a party to the proceeding.
11.7 Orders (Subpoenas) for the Production of Existing Evidence and Attendance of Witnesses
At WCAT, an order is what is otherwise known as a subpoena.
Section 299(1) provides that, at any time before or during a hearing, WCAT may order a person:
- to attend an oral or electronic hearing to give admissible, relevant evidence on oath or affirmation or in any other manner that is admissible and relevant to an issue in an appeal, or
- to produce an admissible, relevant document or other thing in a person’s possession or control.
Panels may issue an order under section 299(1) on their own initiative, or at the request of a party.
A written notice of oral hearing is an order to the appellant to appear at the time and place stipulated. [s.14(c) ATA] (Rule 14.2.3)
A party to an appeal may request an order where a person has or can provide evidence relevant to the matters under appeal and they are not willing or able to provide that evidence voluntarily. This may, for example, include persons who require an order for their employers to give them the time off from work. It may also include experts who have provided a written opinion on which a party wishes to cross-examine them. It does not include Board decision makers but may include Board officers who provide expert evidence, such as vocational rehabilitation consultants, field investigators and medical advisors.
Together with their request for an order under section 299(1), parties must provide WCAT with the following information in writing:
- the name and address, and work location (if applicable) of the witness or person in possession of the documents or things;
- the exact documents or class of documents or things requested;
- the relevance of the evidence to the issue under appeal, that is
- how it relates to the issue under appeal, and
- how it is necessary for WCAT to address the issue under appeal and make a decision in the appeal;
- whether the witness is willing to attend voluntarily, or the person is willing to produce the documents or things voluntarily and, if not, why not; and,
- whether there is another way of testing the evidence.
If full and correct information is not provided, WCAT will generally not issue an order. Where an oral hearing is scheduled, the request for an order must be made at least 21 days in advance. Where there is no oral hearing, the request for an order must be made at least 21 days before the party’s written submission is due. Otherwise, WCAT is under no obligation to consider the request in advance. The party may later repeat a request for an order to the panel.
In deciding whether to issue an order under section 299(1), WCAT will consider whether there are other means for obtaining the same evidence, the relevance of the evidence and, if applicable, the reason for the unwillingness of the person to attend or provide evidence, voluntarily.
The panel will sign an order under section 299(1) in a form approved by WCAT (see Appendix 7 as modified from time to time). A person served with an order compelling their attendance at a hearing is entitled to conduct money payable at the time of service (Supreme Court Civil Rule 12-5(35)). A witness is not obligated to attend if the conduct money is not paid. A person served with an order compelling the production of documents is entitled to payment of the reasonable costs of copying and delivering the documents, payable in advance.
WCAT will be responsible for service and payment of conduct money and/or the costs of production of documents.
WCAT may order depositions of witnesses (in or out of province) in accordance with the Supreme Court Civil Rules [s. 299(3)].
11.7.2 Non-Participating Party
A party may ask the panel to issue an order compelling the attendance of another party who is not participating in the hearing. Where the employer is a limited company, an officer or employee of the company may be required to give evidence on behalf of the company.
11.7.3 Failure to Comply
If a person fails to comply with an order issued under section 299(1), WCAT may apply to the Supreme Court for an order directing compliance [s. 299(2)]. The panel may adjourn the hearing to allow for this. If a person summoned as a witness fails to attend a hearing, take an oath or affirmation, answer questions or produce the records or things in their possession, WCAT may apply to court for committal of that person for contempt [s. 49(1) ATA].
11.7.4 Freedom of Information and Protection of Privacy Act (FIPPA)
Section 3(2) of FIPPA states that it “does not limit the information available by law to a party to a proceeding.” This means that, in WCAT appeal proceedings, FIPPA does not limit the information available to a panel or the parties to the appeal. In issuing an order to obtain documents, the panel will determine the relevance of the information in the documents to the appeal. If the panel finds it necessary, the panel may sever irrelevant information in the copies of the documents before disclosing them to the parties to the appeal.
11.8 Production of Evidence by the Board
An officer, employee, or contractor of the Board may only be compelled to give evidence or produce books, papers, documents and things that [s. 299(4)]:
- relate to the issues in a specific appeal; and,
- are necessary for WCAT to address those issues and to make a decision in the appeal.
The minimum 21‑day time frame for requesting orders set out in 11.7 also applies to requests for orders under section 299(4). Otherwise, WCAT is under no obligation to consider the request in advance. The party may later repeat the request to the panel.
A member of the board of directors or an officer, employee, or contractor of the Board may not be compelled to give evidence or produce books, papers, documents and things respecting the development or adoption of the policies of the board of directors [s. 299(5)]. This prohibition does not prevent voluntary production of these documents.
11.9 Documents in Languages other than English
WCAT conducts its proceedings in English although we provide interpreters at oral hearings when required (14.4.3). All documents submitted to WCAT in an appeal must be in English. If any documents are in another language, the party should also provide an English translation and a signed translator’s declaration. A translator’s declaration normally includes the translator’s name, the language translated and a statement by the translator that the translation is accurate.
WCAT has no obligation to consider or translate documents submitted in another language and may return them to the party for translation. The expense a party incurs associated with translating documents may be claimed as an appeal expense (16.1.3).