- Investigation by Tribunal (whether required)
- Jurisdiction, Tribunal (production of documents)
- Procedure (production of documents)
In the Panel's first interim decision, Decision No. 1314/22I, the Panel directed the Tribunal Counsel Office (TCO) to seek certain additional evidence pursuant to the Tribunal's power under section 132 of the WSIA. It was noted that the Tribunal's authority to use its investigative powers to obtain additional evidence is discretionary, and subject to the Tribunal's necessarily limited resources (see Decision No. 1731/18R). In Decision No. 1229/19, it was emphasized that the principle of proportionality in adjudication should be considered.
In this interim decision, the Panel decided it would not take any further steps in an attempt to compel information from a doctor. The doctor had advised he was retired, and, further, it was reasonable to infer that he was no longer the custodian of the worker's records. It was noted that fairness to the doctor and practical considerations - including the likely steps necessary to attempt to obtain/compel further information - militated against the Panel exercising its discretion to make further requests. The Panel also declined to exercise its investigative powers to have the doctor's clinical notes transcribed on behalf of the employer. It was noted that the employer could have taken this step itself at any earlier stage in these proceedings, at its own cost. In addition, it was noted that where the transcription is done by someone other than the doctor who made the notes, the value is reduced since there is likely to be much less certainty about accuracy, and a third-party transcriber cannot guarantee or verify the attempted transcription. Thus, transcription was not warranted in this case. The Panel agreed that some follow up for the hospital records was warranted, as there were questions regarding whether the hospital had fully understood and fully complied with the earlier production request.