May 25, 2020
Effective June 8, 2020, all in-person hearings scheduled before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) will be converted to teleconference hearings unless the Scheduling Administration Manager is satisfied that another alternative hearing method is appropriate.
If a party objects to proceeding by teleconference, their objection will be addressed by the Vice-Chair or Panel at the outset of the teleconference hearing. The WSIAT has cautioned that delaying a matter to allow for an in-person hearing until the WSIAT’s office reopens will only be necessary in rare circumstances and that objections to the hearing format will not be accepted as a sole basis for adjournment. When considering an objection, the Vice-Chair or Panel may consider:
- The length of the delay should the teleconference be adjourned in favour of an eventual in-person hearing, including whether the delay would be of indeterminate length given that it is not yet known when restrictions related to COVID-19 on in-person hearings will be lifted.
- The potential prejudice to a party.
- The significance of the issue to the parties.
- Whether the individual circumstances of the case and procedural fairness considerations necessitate an in-person hearing.
- It should be noted that while a witness’s demeanour may be an appropriate consideration when assessing credibility, “demeanour can also be misleading and should be factored into the credibility assessment with care”, as it can be inappropriately emphasized. (R. v. D.P., 2017 ONCA 263 (CanLII) at para. 26). Accordingly, issues of credibility will not always necessitate an in-person hearing.
- Any other relevant matter.
(See COVID-19 Interim Practice Guideline – Objections to Alternative Hearing Methods; emphasis added).
On May 22, 2020, the WSIAT published best practices guidelines for teleconference hearings. The document is intended to supplement the WSIAT’s existing Practice Directions and will be updated as necessary in response to “the shifting demands” of the COVID-19 pandemic.
The guidelines state that the WSIAT recognizes the need for flexibility in the hearing process, and that the WSIAT will work with the parties to adapt the hearing process to the specific circumstances of each case.
Representatives and participants should ensure they have access to a working phone in a quiet and private space. Landlines are recommended. If using a cellphone, the guidelines recommend using headphones with a built-in microphone to reduce echo and provide clearer sound quality and to keep a charger nearby. Using speakerphone and Voice over Internet Protocol (VoIP) is discouraged.
Generally speaking, the teleconference will follow the usual order of a hearing: opening remarks from the Vice-Chair or Panel, opening statements from representatives, questioning of witnesses, and closing statements from representatives. As in the usual course, witnesses—other than the parties—should only be “in the room” when providing their own testimony. As such, if more than one witness is being called then each witness will be contacted separately. Parties are permitted to have an observer “attend”, but all observers should be identified.
The WSIAT cautions that currently, during the teleconference process, Vice-Chairs and Panels are unable to receive new documents on the day of the hearing. If a party is of the view that a new document is important for the case, this will become a post-hearing matter.
The complete Best Practices and Teleconference Hearing Information for Representatives and Parties is available on the WSIAT’s website.