Best Practices for Representatives before the Workplace Safety & Insurance Appeals Tribunal
Before the hearing
- Take early action. Ideally, when you meet with your client you will have access to file information to allow you to form an impression of the client’s case and provide advice about his or her rights. You may have represented your client at the WSIB and be familiar with the case. It is preferable that you obtain the file immediately in order to provide advice to your client and determine what steps you have to take to present the case.
- File documents right away. A failure to file the appeal within the time limits may result in the loss of rights for your client. You must act as soon as you are retained to preserve your client’s right of appeal as there is a six month deadline to file an appeal from a decision of an ARO under the WSIA. File the Notice of Appeal within the time limits and by submitting a Notice of Appeal (and not just a letter of appeal). Submit all letters and forms to the Tribunal under your signature. If you are ready for the appeal to proceed to a hearing, you can submit the Confirmation of Appeal at the same time.
- Address related issues before requesting a hearing. When you file the Notice of Appeal, determine if there are any additional or related issues that should be decided by the Board. If there are, attend to these issues promptly to prevent delay at the Tribunal. If you have asked the Board to decide another related matter, send the Tribunal a copy of your letters to the Board so that we are aware of the outstanding matter. Your appeal is not ready to proceed to a hearing at the Tribunal if there are related matters unresolved at the Board level. The failure to address related issues in a timely manner is a frequent cause of adjournments at the Tribunal; it results in a waste of Tribunal resources, is costly and frustrating for your client, and may raise concerns about inadequate preparation by the representative.
- Review and know the entire file. Review the Case Record carefully when you receive it to make sure that no information is missing from the Tribunal’s copy of the Board file – if there is, send it in without delay.
- File additional evidence promptly. If you have additional evidence, submit it with your Confirmation of Appeal form. If you need to obtain additional evidence (such as medical reports) after the COA form has been filed, do so promptly and provide them as soon as they are available (but no later than three weeks before the hearing).
- Understand your client’s case. The best way to do this is to review the file and meet with your client to discuss the appeal in detail before you file the COA – there may be witnesses who can testify, and you must tell the Tribunal and the other party, if any, about these witnesses when you file the COA. This will also give you time to consider if additional medical evidence will be helpful to your client’s case.
- Obtain medical evidence that addresses issues in the case. While the Tribunal has the discretion to obtain additional medical evidence, it will not always exercise this discretion and you should not expect this to happen in all cases. If you believe your client’s case can benefit from additional medical evidence, you should obtain it before the hearing.
- Review the Hearing Ready Letter carefully. If there are witnesses not named in the letter, or other issues that have arisen since you filed the appeal, bring this to the attention of Tribunal staff immediately.
- Carry out legal and medical research on the issues in your case. The Tribunal has a number of medical and legal resources available to the public on its website: www.wsiat.on.ca. If your appeal involves a legal issue, search the Tribunal’s decision database before the hearing for decisions that are relevant to the appeal. While the Tribunal’s adjudicators are knowledgeable about the case law, you need to be aware of the Tribunal’s interpretations of the legislation in order to present your client’s best case. Have copies of relevant decisions available for the panel.
- Stay in touch with your client in the period leading up to the hearing date. If you lose contact with your client, advise the Tribunal promptly so that we can assist in locating him or her. Withdrawal from representation can only occur in accordance with your professional obligations under the Paralegal Rules of Conduct (Rule 3.08) and in the manner described in the Tribunal’s Practice Direction on Representatives.
- Bring all the materials sent to you by the Tribunal to the hearing. This sounds obvious; but it does occasionally occur that a representative will omit to bring the entire file with him or her to the hearing.
- Prepare your witness. For many clients, the Tribunal hearing will be the first time they have testified under oath. Make sure they know the time and place of the hearing. Give them information about the hearing process. Your witnesses should know, in general terms, what they will be asked at the hearing. Caution your witnesses that they cannot ask for help answering questions.
At the hearing
The Opening Statement
- Always offer an opening statement.
- Confirm the issue under appeal, and describe the remedies you are seeking. This will help define the scope of the hearing.
- Keep it brief.
- Describe your theory of the case, including where you think the earlier decision makers got it wrong (or if you are the respondent, why you think they got it right)
- The reasons given by the ARO are not the only issue you have to address – this is a hearing de novo before the Tribunal, and the panel is not bound by any of the findings made by the ARO. Even if the panel agrees with you that the ARO has erred, it must still assess the merits of the case, and you must be prepared to support your position with reference to the law and evidence
- Don’t give your closing remarks in your opening – remember, the opening is not argument, it is your way of helping the panel follow your presentation through the evidence and your argument. A good opening will also help the panel to deal effectively with any difficult objections about evidence.
Examination of witnesses
- Know before you call a witness what your objective is – why are they testifying, and what do you expect them to say? It is critical that you interview witnesses before the hearing day to help you prepare your evidence completely.
- Have a plan and share it with the panel. In a complicated case where your witness will be providing lengthy testimony, let the panel know before the witness testifies what subject matter you intend to cover – but don’t give the witness’s evidence for him.
- Monitor your witness. If your witness is nervous, help him or her to relax by asking some uncontested questions (date of birth, brief work history, etc.). Also alert the panel if your witness will require some accommodation (frequent breaks, alternating sitting and standing) while testifying.
- Do not ask leading questions of your own witness about facts that are disputed (questions that suggest the answer; such as “is it true you fell fifteen feet to the ground in the accident?”)– even if you succeed in asking them, they affect the weight that may be attached to the testimony and you may not achieve the desired effect.
- Make your questions relevant and to the point. For example, if the issue in your case is a NEL assessment, there is no need to review the history of the accident in detail.
- Pay attention to the panel’s questions – and address any potential misunderstanding in your reexamination of the witness.
- The written record is important – panels read all of the Case Record and other materials, and will refer to them in their decision-making. Be sure to address any inconsistency between your client’s testimony and Board memos or other evidence that address the same issue by drawing those inconsistencies to your client’s attention and asking for comment. For opposing representatives, this is also an important part of cross-questioning.
- Cross-questions are questions not statements. Cross-questioning is not the opposing representative’s opportunity to state his client’s case or give evidence. However, opposing representatives should be sure to ask the witness to comment on contradictory evidence that they expect their own witnesses to provide.
- Provide a summary of the points you intend to make. This will allow the panel to give you some feedback before you begin. For example, they may advise you that you do not need to address certain points because they are satisfied with your view based on existing evidence. Alternatively, the panel may ask you to address an issue that you did not identify in your outline.
- Avoid reading at length from reports and memos in the file, or from your written submissions if you have prepared them. The Panel has already read the file and will review the relevant documents again after the hearing. Your role is to point out those specific references that support your argument or theory of the case, and to respond to those that do not. This is your opportunity to help the Panel distinguish between what is important and what is not; so avoid burying your argument in irrelevant material.
- Pace your submissions – watch the panel’s pens and make sure they are keeping up with your argument.
- Always address “negative evidence” and credibility of witnesses. All cases have strengths and weaknesses. Even if the appeal is not opposed, the panel will be aware of the arguments or evidence that do not support your client’s position. Acknowledge that it exists, and explain why it should not affect the panel’s view of the case.
- Address law and policy that applies to your case. Be aware of the relevant statutory provisions, refer to them, and describe how they apply to the facts of the case. All Tribunal decisions must apply Board policy, and you should be prepared to address which policy applies and how it affects the case at hand.
- Use Tribunal case law. Find decisions involving similar cases and provide them to the panel. If there is a significant decision that seems to contradict your position, be prepared to talk about it and offer submissions on why it may not apply to the facts of your case.
- Basic compensation law principles. Members of the Tribunal will have an understanding of certain principles that are well understood and do not need to be debated or discussed at length. Generally, it is not necessary to do more than state these principles or well known provisions and move on.
- Invite questions from the panel.
General comments about hearing representation
Seek direction from the panel if you are uncertain about the process in the appeal. If the panel asks you to address an unanticipated area and you are not ready to do so, ask for a brief recess to collect your thoughts. If the panel asks you to direct your argument to a specific area and you are unable to do so because of the way you prepared the case, tell them – don’t just proceed as if nothing happened, because they may interrupt you again, thinking you have chosen to ignore them. Advise your clients before the hearing about what to expect during the hearing. If your client has special needs that need to be accommodated, bring this to the panel’s attention at the beginning of the hearing – this will set your client at ease.
Excerpted from a LSUC presentation given by Marsha Faubert, former Executive Director, WSIAT