Chapter 7: Preliminary Processes
- 7.1 Streaming: Regular or Specialty
- 7.2 Joining or Combining Appeals
- 7.3 Facilitated Settlement and Alternative Dispute Resolution (ADR)
- 7.3.1 Mediation
- 7.4 Pre-Hearing Conferences
- 7.5 Appeal Method
7.1 Streaming: Regular or Specialty
The registrar’s office will assign each appeal to the regular or specialty stream.
In the regular stream, an assessment officer will make a preliminary determination as to whether the matter should proceed by written submissions or oral hearing. A panel will be assigned once written submissions are complete or an oral hearing is scheduled.
In the specialty stream, the appeal will be assigned to a panel at the outset, and the panel will determine whether the appeal should be by written submissions or oral hearing. Prevention appeals, including prohibited action appeals under section 50, and assessment appeals will normally be assigned to the specialty stream. The registrar’s office will assign other appeals to the specialty stream based on procedural complexity.
7.2 Joining or Combining Appeals
The chair may order that related matters be considered together in one hearing [s. 280(2)(k)].
Section 37(1) of the ATA also gives WCAT the authority to combine appeals, hear them at the same time, or one immediately after the other, or stay one or more appeals until another of them has been determined. As this use of “stay” does not apply in the context of WCAT appeals, and as WCAT has no authority under the WCA to suspend appeals in these circumstances, WCAT may delay processing appeals in appropriate circumstances.
7.2.1 Joining Appeals Regarding the Same Worker
Where there are multiple appeals regarding the same worker involving similar issues, the chair may assign all of the appeals to one panel to be considered together in one hearing. Where more than one claim is involved, the panel will consider what steps, if any, are required to protect the privacy of the parties.
In determining whether appeals should be joined, the registrar’s office may consider such factors as whether the appeals have similar issues, their respective appeal methods, their stages in the appeal process, and the effect of joining on the statutory time frames for making decisions on the appeals.
7.2.2 Combining Appeals
Where multiple appeals from different appellants involve the same general issue, the chair may assign a group of appeals to one panel to be considered in one hearing. WCAT will consider what steps, if any, are required to protect the privacy of the parties.
WCAT may require each party to sign an authorization to release information to the other parties in the appeal. WCAT may also require each party to sign an agreement with respect to placing documentation pertaining to the appeal on the Board files of all the parties (see Appendix 6).
Depending on the circumstances, the panel may issue:
- a “generic” decision, addressing all of the combined appeals;
- a “generic” decision dealing with a common issue raised by the combined appeals, together with individualized decisions on each appeal; or,
- an individual decision on each appeal which takes into account the common evidence or submissions.
7.3 Facilitated Settlement and Alternative Dispute Resolution (ADR)
The chair may appoint a member or staff of the tribunal or another person to conduct a facilitated settlement process to resolve one or more issues in dispute. WCAT may require two or more parties to participate in the facilitated settlement process, in accordance with the MRPP. WCAT may make the consent of one, all or none of the parties a condition of a facilitated settlement process [s. 28 ATA].
The chair may establish any rules, forms, practices and procedures required for the efficient and cost effective conduct of appeals to WCAT, including employing voluntary ADR processes [s. 280(2)(d)(iii) WCA; s. 28(1) ATA].
WCAT uses ADR on a limited basis. WCAT will determine when ADR will be appropriate based on the particular circumstances of the appeal, and the willingness of the parties to attempt to achieve a consensual resolution. A party may request ADR or WCAT may recommend it.
WCAT has limited the use of mediation to prohibited action appeals under section 289(1) and appeals from classification decisions under section 244(2). It is unlikely that WCAT will utilize mediation to address compensation entitlement issues.
WCAT may recommend to the parties to the appeal that mediation be used to assist in the resolution of an appeal [s. 297(2)(e)]. The purpose of mediation is to seek a consensual resolution to a dispute, and/or to some of the issues or matters in dispute, between or among the parties to an appeal. Where WCAT considers it appropriate, representatives from the Board may also be involved in the mediation process.
The representatives of parties participating in mediation must have the authority to enter into a settlement agreement. If mediation is undertaken but does not result in a consensual resolution, WCAT will proceed to adjudicate the appeal. Unless the parties otherwise agree, evidence, notes or records from a mediation process which does not produce a consensual resolution will be destroyed and will not be placed on the WCAT file. They are inadmissible in the appeal proceedings [s. 298(5)]. The appeal will be assigned to a WCAT panel which did not have any involvement in the mediation.
Where the parties achieve a consensual resolution, the parties’ representatives will draft a settlement agreement. The mediator may assist in preparing the settlement agreement. Generally, the settlement agreement will not refer to the appellant withdrawing the appeal.
A WCAT panel will review the settlement agreement to ensure it is consistent with the WCA. The panel will dispose of the appeal through a decision, confirming that a settlement agreement was reached which is lawful under the WCA. The terms of the settlement need not be contained in the WCAT decision.
The final settlement agreement and the WCAT decision will both be placed on the Board file. Unless the parties otherwise agree, records concerning the process used to reach the settlement agreement will not be placed on the Board file. They will be stored at WCAT.
Parties to an appeal that participated in mediation, whether or not it resulted in a settlement agreement, may request reimbursement of expenses associated with attending a mediation and obtaining or producing evidence that was submitted to WCAT with respect to the appeal. In deciding whether to reimburse the expenses, WCAT will apply the criteria set out in 16.1.3.
7.4 Pre-Hearing Conferences
WCAT may require the parties to attend or participate in a pre-hearing conference to discuss procedural and substantive issues relating to the conduct of an appeal [s. 297(2)(c)]. The panel will decide whether a pre-hearing conference should be held. A pre-hearing conference may assist the panel to:
- identify the issues;
- determine what additional evidence, including any new medical or other expert evidence, will be required, and the time frame for the production of that evidence;
- resolve any procedural issues such as whether an oral hearing will be convened and, if so, when and for how long the hearing would be scheduled;
- determine whether an issue should be referred for mediation;
- consider whether the panel should seek advice from a health professional under section 302; or,
- identify and resolve disclosure issues.
Pre-hearing conferences will be recorded.
7.5 Appeal Method
WCAT may conduct an appeal in the manner it considers necessary, that is by oral hearing or written submissions. Oral hearings may be conducted in person, by teleconference, videoconference, or any other electronic means [s. 297(1)].
RULE: WCAT will normally grant a party’s request for an oral hearing where the appeal involves a significant issue of credibility, where there are significant factual issues in dispute, and/or where there are other compelling reasons for convening an oral hearing (e.g. where an unrepresented appellant has difficulty communicating in writing or in English).
WCAT will normally conduct an appeal by written submissions where the issues are largely medical, legal, or policy based and credibility is not at issue.
WCAT will normally conduct applications for an extension of time to appeal (8.2), a stay of decision (8.3), a certification to court (18), and a reconsideration (20.2 to 20.3.2) by written submissions.
For appeals in the regular stream, the registrar’s office will determine at the outset whether the appeal will proceed by written submissions or oral hearing. The panel assigned to hear the appeal makes the ultimate decision regarding the appeal method. For appeals in the specialty stream, the panel will determine the appeal method at the outset (7.1).
Panels have the discretion to change the appeal method. A panel may decide to convene an oral hearing if the panel considers it necessary or helpful to its decision. If an oral hearing has been scheduled, the panel may conclude that an oral hearing is not necessary to its decision and proceed by written submissions.