Chapter 14: Oral Hearings
- 14.1 Before the Oral Hearing
- 14.2 Attendance at the Oral Hearing
- 14.3 Procedure at the Oral Hearing
- 14.4 Who May Attend the Oral Hearing
- 14.5 Record of the Oral Hearing
- 14.6 Unsolicited Post-Hearing Evidence or Submissions
- 14.7 New Evidence Obtained by the Panel
WCAT holds oral hearings at its Richmond office and in various locations throughout British Columbia. One hour is generally scheduled for an oral hearing in the regular stream, although more time may be scheduled if WCAT considers it necessary. For appeals in the specialty stream, the panel will determine the length of time to be scheduled for the oral hearing (7.1).
14.1 Before the Oral Hearing
14.1.1 Practice Directive on Scheduling
WCAT has a statutory time frame for deciding appeals. If an appellant requests an oral hearing in their notice of appeal, the appellant must be prepared to proceed with the oral hearing within two to three months of the request. The parties will normally be given at least four weeks’ notice of the oral hearing date. The registry will generally schedule oral hearings without consulting the parties.
If a party requests a change of date within 14 days of the date of the notice of hearing letter, WCAT will automatically grant it on a one time only basis. If the other party subsequently requests a change of date within 14 days of the notice of the new hearing date, WCAT will grant the request on a one time only basis and set another date.
Participants are expected to check their availability as well as the availability of witnesses before the 14‑day period for automatic date change expires.
Where WCAT reschedules the oral hearing at the request of the parties, or where the parties were consulted when the hearing was scheduled initially, WCAT will make further date changes for exceptional circumstances only (14.1.2).
RULE: After the 14‑day periods for automatic date changes expire, WCAT will grant postponements only for exceptional circumstances, for example, personal emergencies such as serious medical problems, family crises, bereavement, motor vehicle accidents, or the unforeseeable unavailability of an essential witness. Parties should provide documentation in support of their request for postponement.
Factors such as the need for more time to gather evidence or information, a representative’s schedule, vacation dates, and convenience to the parties will generally not be considered exceptional circumstances.
Requests for postponement outside the 14‑day period must be in writing and copied to the other participating parties. The request must include the reason for the request.
Up to 21 days before the hearing, the registrar’s office will decide postponement requests. After that, the panel decides the requests. Where the registrar’s office has previously denied a request, a panel will generally not grant a postponement without new exceptional circumstances. The panel will consult with the registrar’s office before granting the postponement.
WCAT maintains a strict postponement policy. Requests may be granted, but in limited circumstances. When deciding a postponement request, WCAT may consider a variety of factors including:
- whether the request is made far enough in advance so that the hearing can be rescheduled with a minimum of cost and disruption of schedules and/or the hearing date may be made available for another appeal;
- whether the oral hearing was scheduled in consultation with the parties;
- whether a prior postponement was granted;
- the effect of the postponement on the statutory time frame for decision making; and,
- any prejudice to the other parties balanced against the prejudice to the requesting party if the postponement is not granted.
Where a hearing is postponed, WCAT will reschedule the hearing having regard to the statutory time frame for decision making. WCAT will not grant an open‑ended postponement.
14.1.3 Communication of the Postponement Decision
If the postponement request is granted, all parties will be notified by telephone or other means. If a panel grants a postponement request directly (particularly out of town), the panel is responsible for ensuring all participating parties are notified.
If the request is denied, WCAT will inform the party making the request of the following options:
- attend the oral hearing, possibly with time for post-hearing submissions;
- participate by telephone, videoconference, or other electronic means;
- proceed by written submissions; or
- in the case of an appellant, withdraw the appeal.
14.1.4 New Documentary Evidence
New documentary evidence, including expert opinions, should be sent to WCAT at least 21 days in advance of the oral hearing so that WCAT may disclose it to other participating parties (11.6). Where WCAT receives a submission or evidence before the date of hearing, WCAT will provide it to all participating parties.
If a party fails to comply with this expectation, the panel may accept new documentary evidence at the oral hearing. The panel will decide how to ensure the other party is given an adequate opportunity to respond.
14.2 Attendance at the Oral Hearing
14.2.1 Presence of the Appellant
An oral hearing will generally not proceed in the absence of the appellant unless the panel agrees in advance of the hearing. If the appellant’s representative appears at the hearing with written instructions from the appellant to proceed in the appellant’s absence, the panel may proceed with the hearing if the panel is satisfied the appellant’s failure to attend and give evidence will not prejudice a participating respondent or WCAT’s ability to fairly decide the appeal. The panel will make a copy of the appellant’s written instructions which will be placed on the Board file.
18.104.22.168 Presence of the Appellant’s Representative
An oral hearing may proceed in the absence of the appellant’s representative.
14.2.2 Late Appearance
If the appellant appears within ten minutes of the scheduled hearing time, the panel will proceed with the hearing. If the appellant appears after ten minutes, the panel may proceed with the hearing depending on availability of the panel, whether other hearings will be delayed, and whether any respondent or witnesses have left. The panel will also consider whether the appellant’s failure to attend and give evidence will prejudice a participating respondent or WCAT’s ability to fairly decide the appeal. If the panel does not proceed with the hearing due to the appellant’s late appearance, WCAT will consider that the appellant failed to appear (14.2.3).
Participating respondents are expected to attend the oral hearing, unless they inform WCAT that they will not be attending. Where a respondent has filed a notice of participation but is not present at the scheduled time, the panel will wait ten minutes before proceeding. A respondent (or the respondent’s representative) will be allowed to participate if they arrive late, but the panel will determine the procedures that will be followed to continue the hearing.
14.2.3 Failure to Appear for an Oral Hearing
RULE: Pursuant to section 14(c) of the ATA, a written notice of oral hearing is an order to the appellant to appear at the time and place stipulated.
Section 297(5) of the WCA states that, if a party fails to comply with an order or the rules of practice and procedure, WCAT may, after giving notice to that party:
- schedule a written, electronic or oral hearing;
- continue with the appeal and make a decision based on the evidence before it, with or without providing an opportunity for submissions; or,
- dismiss the appeal.
If an appellant fails to appear for an oral hearing, the registrar’s office will order the appellant to provide written reasons for the failure to appear within 14 days. If a response is received, WCAT will invite comments from any participating respondent who appeared for the hearing. Any submission by the respondent will be disclosed to the appellant for rebuttal.
The panel may investigate the appellant’s reasons by reviewing relevant records (e.g. when did the appellant first contact WCAT to explain why they could not attend the hearing, was a postponement requested for the same reason and refused), or by requesting documentary verification (e.g. medical letter, towing bill, letter from employer).
22.214.171.124 Adequate Reasons
An appellant’s failure to appear at an oral hearing would normally only be justified by a personal emergency or other serious and unforeseen circumstances which prevented the appellant both from attending the hearing and from notifying WCAT in advance of the hearing.
Valid reasons would include a personal or family emergency that could not have been anticipated, or other compelling, unpredictable situations, which made it difficult or impossible for the appellant to notify WCAT in advance. Examples could include a motor vehicle accident on the way to the hearing, an acute family crisis, and acute physical or mental disability.
Panels will generally not consider the following as valid reasons for failing to appear at an oral hearing:
- a non-emergency medical or personal situation,
- misunderstanding the hearing notice;
- personal activities;
- forgetting about the hearing, or oversleeping on the day of hearing; or,
- failure to receive the hearing notice where this resulted from the appellant’s failure to notify WCAT of their change of address.
126.96.36.199 No Show Decision
Once submissions regarding the failure to appear at the oral hearing are complete, or the due date for those submissions has passed, the panel will decide whether the appellant has failed to comply with the order to appear at the hearing, or the order to provide written reasons for not appearing. The panel will decide to:
- schedule a written, electronic, or oral hearing;
- continue with the appeal and make a decision based on the evidence before it, with or without providing an opportunity for submissions; or,
- dismiss the appeal.
Usually WCAT will dismiss the appeal if the appellant failed to comply with both the order to appear at the oral hearing and the order to provide written reasons for not appearing.
Where the appellant provides inadequate reasons for not appearing at the oral hearing, panels have the discretion to reschedule the hearing where the panel considers that the appeal should be addressed on the merits despite the appellant’s failure to appear at the oral hearing, and an oral hearing is essential to consider the appeal. A panel may exercise this discretion where, for example, the issue under appeal is very significant and credibility is a central issue. In that case, the appellant will be notified that a failure to appear at the rescheduled hearing would likely result in the appeal being dismissed.
Where an oral hearing is scheduled, a participating respondent is normally expected to appear at the oral hearing, either in person or by telephone.
If a respondent fails to appear at an oral hearing, and fails to make the necessary arrangements to participate by telephone, they will be deemed to have waived their right to participate further in the appeal.
Where a participating respondent does not attend the oral hearing, either in person or by telephone, they may send in a written submission in advance of the oral hearing. Generally, WCAT will not provide the respondent with a copy of the voice recording of the oral hearing or any new documentary evidence or argument that was submitted at the oral hearing or obtained by the panel after the hearing. Panels may, however, invite the respondent’s comments if the panel considers this to be necessary or helpful to its consideration.
Where WCAT receives evidence establishing that the respondent was unavoidably delayed or otherwise prevented from attending the hearing, the panel will decide how to ensure the respondent is given an adequate opportunity to participate in the appeal.
14.2.4 Attendance by Telephone, Videoconference or Other Electronic Means
The panel may permit a party or parties, their representatives, or witnesses to attend an oral hearing by telephone, videoconference, or other electronic means. In exercising its discretion to permit a person to attend an oral hearing by telephone, the panel may consider:
- the person’s location;
- the difficulty and/or expense associated with travelling to attend the oral hearing;
- whether not permitting a person to attend by telephone, videoconference, or other means is likely to result in postponement of the oral hearing;
- whether permitting a person to attend by telephone, videoconference, or other means is likely to unreasonably limit the ability of a party to cross-examine the person;
- the person’s preference to attend by telephone, videoconference or other electronic means; any other factor or circumstance the panel considers relevant to the exercise of its discretion.
14.3 Procedure at the Oral Hearing
Oral hearing procedures may vary depending on the circumstances of a particular appeal. WCAT will generally follow this sequence in an appeal involving an appellant and a respondent:
- the panel will introduce themselves, explain the role of WCAT, and ask other persons in attendance to introduce themselves and explain their role in the hearing;
- the panel will confirm the parties’ addresses. The panel will ask the worker and other witnesses whether they are seeking reimbursement of lost wages for attending the hearing. The panel will ask both the worker and the employer whether they are seeking reimbursement for any other expenses;
- the panel will exclude witnesses, where appropriate, until they are called upon to give evidence;
- the panel will identify the decision under appeal and clarify the issues under appeal. Where there is disagreement, the panel will give the parties an opportunity to comment before the panel decides what issues they will consider;
- the appellant will present their case, including a brief statement of the remedy sought (including expenses) and grounds for the appeal, followed by their evidence;
- the respondent may question the appellant’s witnesses on any relevant matter;
- the panel may question the appellant’s witnesses on any relevant matter;
- the respondent may present their case, including a brief statement of the remedy sought (including expenses), followed by the evidence;
- the appellant may question the respondent’s witnesses on any relevant matter;
- the panel may question the respondent’s witnesses on any relevant matter;
- the panel may give the appellant the opportunity to present additional evidence to respond to new evidence the respondent introduced;
- the appellant will make submissions based on the evidence before the panel. Submissions may include reference to relevant Board policies or to prior WCAT decisions;
- the respondent will make submissions;
- the appellant may respond to the respondent’s submissions;
- the panel will close the hearing and state that a written decision will be sent to the parties. The panel will confirm the statutory due date for the decision, subject to any extension of time being necessary due to complexity.
Section 38 of the ATA, which applies to WCAT, provides that WCAT may reasonably limit examination or cross-examination of a witness if it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the oral hearing.
Representatives and parties to an appeal have a duty to avoid improper questioning (see 21.1.2 and 21.2.2). Improper questions include harassing, intimidating, oppressive, unduly repetitious, or offensive questions. In considering whether to limit examination or cross-examination, a panel may consider the following:
- any mental or physical disability that the witness appears to have; and
- any other matter about the witness that the panel considers relevant. For example, age, education, cultural background, and relationship to parties in the appeal may be considered.
Where a panel finds that the time scheduled for an oral hearing is insufficient, and it is not possible to complete the oral hearing on the scheduled date(s), the panel may continue the oral hearing on a later date.
14.3.1 Conduct of Oral Hearings
At oral hearings parties may expect that WCAT panels will:
- approach every hearing with an open mind on every issue, and will avoid doing or saying anything that could cause any person to think otherwise;
- treat all participants in the hearing process with courtesy and respect;
- make every effort to ensure that all participants treat each other with courtesy and respect;
- allow parties reasonable latitude to present their case without interruption, subject to the panel’s obligation to control the hearing for relevance and to ensure that the procedure is fair;
- explain the hearing procedure and the issues to be decided. The panel’s explanation will be consistent with the knowledge and experience of the participants.
14.3.2 Maintaining Order at the Oral Hearing
The panel may make orders or give directions to maintain order at the oral hearing, and may [ss. 48(1) and (3) ATA]:
- impose restrictions on a person’s continued participation in or attendance at an oral hearing;
- exclude a person from further participation in or attendance at an oral hearing until the panel otherwise orders.
If any person refuses or fails to comply with an order or direction under section 48 of the ATA, WCAT may:
- call on a peace officer to enforce the order or direction [s. 48(1),(2) ATA];
- apply to the court to commit the person for contempt of the order or direction [s. 49(2) ATA].
Where there are security concerns, WCAT may arrange for security personnel to attend the oral hearing. If a party or their representative has a security concern, they should contact the registrar’s office who, following consultation with the panel, will decide whether to arrange for security personnel at the oral hearing.
14.4 Who May Attend the Oral Hearing
Oral hearings are not open to the public, as WCAT must maintain confidentiality [s. 260].
The appellant, the appellant’s representative, the respondent, and the respondent’s representative have a right to attend an oral hearing. Some appeals may involve more than one respondent.
Parties have the right to be present for the whole of the oral hearing even if they will be giving evidence. The panel will determine the extent to which interested participants will be permitted to participate in an oral hearing.
The panel has the discretion to permit members of the public, including the media, to attend an oral hearing with the consent of all participating parties. WCAT may require observers to sign a promise of confidentiality. The panel will generally exclude witnesses from the hearing room until the panel is ready to hear their evidence.
Panels will generally allow the following persons to observe oral hearings if all parties consent: family members, friends, trainee representatives, and WCAT or Board staff wishing to observe for training purposes. Any observers must be identified at the outset of the hearing. A party may withdraw their consent at any time during the oral hearing.
Observers are not permitted to participate in the oral hearing. Observers or participants who disrupt the hearing may be expelled from the oral hearing room.
A party may be represented by counsel or an agent [s. 32 ATA]. A representative may be a lay person, union advocate, human resources personnel, lawyer, workers’ adviser, employers’ adviser, etc.
Where there is more than one person attending the hearing on behalf of a party to the appeal, panels should ascertain who is acting as the representative. Where the employer is a limited company, one person may be designated as the representative and one as the employer. Other persons would normally be witnesses or observers.
14.4.2 Witnesses (11.7)
Section 38 of the ATA provides that a party may call and examine witnesses, present evidence and submissions and cross-examine witnesses as reasonably required for full and fair disclosure of all matters relevant to the issues on the appeal. The panel has the right to control this examination for relevance and may limit examination or cross‑examination of a witness (see 21.1.2, 21.2.2). The panel may also question any witness who gives oral evidence.
Panels will normally exclude witnesses (other than an instructing party) in order to prevent them from being influenced by the evidence of other witnesses. In deciding whether to exclude witnesses, the panel may consider whether this is a real risk, whether the evidence is relevant to a contentious issue, and whether there are good grounds for allowing the witness to remain in attendance (i.e. moral support for the appellant). Panels can place greater weight on the evidence of a non-party witness if the witness was not present in the hearing to listen to the evidence of other witnesses before the non-party witness gave their evidence.
Panels have the discretion to hear evidence from persons who were originally identified as observers or representatives. If any person (including the worker or an employer officer/employee) attends an oral hearing as an observer, the panel may require them to answer questions if the panel considers this necessary or helpful to the panel’s inquiry.
188.8.131.52 Affirmation or Oath (Appendix 8)
Witnesses, including the parties to an appeal, will usually be required to give evidence under affirmation or oath. This involves a solemn promise to tell the truth, in a form binding on the conscience of the witness. The panel will usually swear or affirm each witness immediately before the witness gives their evidence.
14.4.3 Interpreters (11.9)
WCAT provides independent interpreters when required. The appellant should advise WCAT of their need for an interpreter in their notice of appeal. The respondent should advise WCAT of their need for an interpreter in their notice of participation.
Friends or relatives are generally not permitted to act as interpreters, although the panel may allow this in appropriate circumstances such as where the party only needs assistance with a few words. Where the panel believes that an interpreter is necessary and none is present, the hearing will be rescheduled.
Interpreters are normally affirmed or sworn at the start of the hearing (see Appendix 8).
14.5 Record of the Oral Hearing
RULE: No party, representative, or observer may record a WCAT hearing by any audio, video or other electronic means.
WCAT is authorized to audio record or transcribe its hearings [s. 35(1) ATA]. Where practical, WCAT will audio record oral hearings. The recording constitutes part of the record of the proceeding.
After the decision has been issued, WCAT will forward the recording to the Board for storage as part of the Board’s file. If a recording is destroyed, interrupted, or incomplete, the validity of the proceeding is not affected [s. 35(3) ATA].
WCAT does not generally provide a copy of the oral hearing recording to the parties. However, where an oral hearing is adjourned for a lengthy time WCAT will, on request, ask the Board to provide a copy of the recording to the parties. WCAT will provide a copy of the oral hearing recording where a single member panel is unable to complete their duties and the appeal must be continued and completed by another member (2.7.4). WCAT may also ask the Board to provide a copy of the oral hearing recording where a procedural fairness concern is raised on a reconsideration application (20.3.2).
WCAT does not provide written transcripts of the oral hearing except where the panel determines that a transcript of specific evidence is necessary. In that case, WCAT will provide transcripts of that evidence to all parties.
14.6 Unsolicited Post-Hearing Evidence or Submissions
WCAT generally will not accept unsolicited post-hearing evidence or written submissions.
Alternatively, WCAT may accept unsolicited post-hearing evidence or written submissions if the party specifically requests and the panel agrees in advance. In deciding the request, the panel will consider why the evidence or written submission was not available earlier, its relevance to the appeal, and the impact of the delay on the statutory time frame for issuing the decision.
If the panel decides to accept the additional evidence or written submissions, WCAT may set a new decision due date (17.1.1). The panel will provide reasons for accepting or not accepting the late evidence or submission in its decision.
If a panel accepts additional evidence or written submissions, WCAT will disclose it to all participating parties who attended the oral hearing. The other parties will generally have an opportunity to respond. However, WCAT may disclose submissions that do not include new and relevant evidence for information purposes only.
Where a submission is transmitted to WCAT by fax, it is not necessary to send WCAT the original document. Where the party also sends the original document, WCAT will note the fax received date on the original document and destroy the fax.
14.7 New Evidence Obtained by the Panel
Where the panel obtains further evidence or views relevant new evidence or information on the Board file that was placed there after the date of last disclosure or updated disclosure to the parties, the panel will disclose that evidence to the parties for comment.
The panel will decide the procedure and due dates to be set for obtaining comments on the new evidence or information. Normally the evidence will first be disclosed to the appellant and their representative. The new evidence together with the appellant’s response will then be disclosed to the respondent and their representative. The respondent’s submission will then be forwarded to the appellant for final response. Alternatively, the panel may disclose the new evidence to both parties and invite responses from both parties at the same time, and then give each party an opportunity to respond to the other.
Where a submission is sent to WCAT by fax, it is not necessary to send the original document. Where the party also sends the original document, WCAT will note the fax received date on the original document and destroy the fax.