- Adjournment (additional evidence)
- Evidence (admissibility) (expert evidence)
- Procedure (interim decision)
In this interim decision, the Panel decided some of the preliminary issues regarding the admissibility of expert evidence, and adjourned the hearing pending receipt of additional evidence.
Subsection 59(6) of the WSIA explains the duty of confidentiality imposed upon an employer and its representative when dealing with health information from the Board. The documents in question were successfully redacted and anonymized with the exception of two pages where attempts at redaction and anonymization were only partial and incomplete. The Panel considered this a minor clerical error.Decision No. 968/90R provides a helpful framework in determining whether evidence should be excluded when the manner in which the evidence was obtained "affects the fairness of the proceedings." In the Panel's view, these factors largely weighed in favour of the Tribunal exercising its discretion to allow the expert reports to remain in the documentary record of this appeal. This evidence was central to advancing the employer's case in this appeal. The inclusion of this evidence was essential for the employer to have a full and fair opportunity to present its case to the Tribunal. There was no similar or better evidentiary source that could be relied upon by the employer's representative in this regard. In the Panel's view, a request to exclude relevant evidence would have to be truly exceptional for it to be granted.The Panel also acknowledged that the audio recording of the Board's Appeals Branch proceedings was provided to the expert. It was noted that a different and more tailored method of providing the contents of this audio recording, such as a minimized/redacted audio file or redacted transcript or summary, could have been implemented. However, the contents of the recording and the manner in which it was provided was not sufficiently exceptional to warrant the exclusion of the medical report. With a view to subsection 59(6) of the WSIA, the Panel also found that this audio segment did not qualify as "health information obtained from the Board." Lastly, it was noted that this worker's confidential information had not been further disclosed to any other parties. The disclosure made was for a very limited purpose in the context of gathering medical evidence for the employer's appeal. There was no evidence that the employer acted in bad faith or for any improper purpose. While the Panel did not condone the sub-optimal disclosure of the worker's "health information" by the employer's representative contrary to subsection 59(6) of the WSIA, the particular circumstances of this disclosure were not so egregious as to render any or all of the expert reports inadmissible in the appeal proceedings.