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Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelleAppeals Tribunal et de l’assurance contre les accidents du travail

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WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

DECISION NO. 917/05I2

BEFORE: E.J. Smith : Vice-ChairM. Christie : Member Representative of EmployersF. Jackson : Member Representative of Workers

HEARING: May 13, 2005, at TorontoNovember 22, 2005, February 6, 7, and May 30, 31, 2006August 25 and 26, 2008, at KitchenerOralJanuary 31, 2011, WrittenPost-hearing completed on September 27, 2011

DATE OF DECISION: November 23, 2011

NEUTRAL CITATION: 2011 ONWSIAT 2703

DECISIONS UNDER APPEAL: WSIB ARO decision dated October 1, 2002 (Re J. D.)

APPEARANCES:

For the estate of J.D.: Mr. R. Christie, Union representative

For 6 other appellants Mr. R. Christie, Union representative(D.F.,G.O.,B.K.,W.M.,J.P.,J.S.)

For the appellant the J.R. estate Mr. L. Dillon

For the employer: Not participating

For the Tribunal Counsel Office: Ms. H. Evelyn; Ms. G. Shaw, Ms. E. Sinclair, Ms. D. Allen

Decision No. 917/05I2

REASONS

(i) Background; the issue

(a) The access issue in a batch appeal; the request for withdrawal

[1] This second interim decision in the appeal of the deceased worker J.D. addresses an access issue that has arisen in this appeal. It also addresses the request of the G. O. Estate to withdrawfrom the batch appeal.

[2] We have also issued interim decisions addressing these issues in six of the other sevenappeals that have been joined together with this appeal as a batch appeal. The issues affect the progression of the appeals of all the appellants. We have issued a final decision in the appeal of the eighth appellant, G.O.

[3] The appellant G.O. was one of eight fire fighters whose appeals have been heard as a batch appeal. All eight appellants attended the “H.T.” fire, on March 6, 1987. The company whose plant burned produced the green plastic foam that florists use in vases.

[4] The hearing of the eight batch appeals was divided into two phases. The first phase of hearing was held to address the non-expert factual evidence: about the workers’ attendance at the H. T. fire, their work histories and exposures, their medical histories and diagnoses, as well as the factual evidence about the co-workers who have associated claim files, the evidence about other cases of illness or birth defects among persons who attended at the fire, and about the chemical exposures that took place at the fire. The Panel ruled that a second phase of hearing will consider expert evidence about the significance of the exposures for the workers’ diagnoses.

[5] The first phase of hearing is complete. A first interim decision, Decision No. 917/05I, was issued for this appellant on November 5, 2008. That decision referred medical issues to a Tribunal medical assessor or assessors. However, difficulties arose with procedural matters afterthe first interim decision was issued. Some of those issues have been resolved. This decision addresses new procedural issues that primarily relate to the provision of the draft Assessor Brief for the eight batch appeals to the representatives and to the assessors. It also addresses a request by the estate of G.O. to withdraw the appeal.

(b) The procedural issues and delays that are now resolved

[6] The eight batch appellants were initially all represented by Mr. J. Christie, who was the representative for this Appellant with respect to the first interim decision. The employer is not participating. The first interim decision made findings of fact and referred questions to a Tribunal medical assessor or assessors. The first interim decision included reference to the medical conditions of all the appellants as well as information about their working conditions, generally, and on the day of the H.T. fire. The eight parties had agreed that the matters could be decided on a basis that included a cluster argument. G.O. testified, and relevant parts of his testimony were incorporated in the other seven interim decisions. Similarly, relevant portions of the testimony of B.K., J.R., and J.P., the other appellants who were able to testify, were incorporated into Decision No. 912/05I. All of the interim decisions referred questions to the assessor(s) about the H.T. fire in general, as well as questions specific to the individual workers. Question 3 of the interim decision was:

Page: 2 Decision No. 917/05I2

What, in your view, is the significance of the purported “cluster” of cancer cases foundamong persons who attended at the H.T. fire? Can any inferences be drawn from the number of cancer cases? Please comment on Mr. Christie’s submission that it is relevant that the fire fighters who died were doing the overhaul work on the morning shift, when workers were working in close proximity to the site materials and respirators were largely not used.

[7] However, all eight batch appeals were in inactive status for periods of time between 2006 and 2008, because of the need to clarify the effects of a new Regulation which addressed entitlement for fire fighters, and because of scheduling difficulties experienced by Mr. Christie.

[8] Further, at the time that the eight batch appeals initially proceeded at the Tribunal, the appeal of one of the batch appellants, J.R., for leukemia, had not been finally determined at the Board. Further, J.R. had retained a different representative for the purposes of his leukemia appeal. Therefore findings of fact about his leukemia were initially deferred until it was known if that appeal would be allowed at the Board and/or whether the Tribunal had jurisdiction to address that matter. That deferral resulted in a delay in the referrals to Tribunal assessor(s) of all the appellants. The parties have raised a cluster argument, submitting that the high incidence of cancer in workers who attended the H.T. fire suggests that the cancers are related to that fire and to the workers’ occupational exposures. Because of the cluster argument, it was necessary thatthe medical and factual evidence about all the appellants be available to the assessor(s). The assessor(s) must be provided with evidence of all the cancer cases in the purported cluster. Therefore the Panel was not in a position to proceed with the referrals to the assessors that were identified in the Interim Decisions until the leukemia appeal was complete at the Board.

[9] The appellant J.R. died of his leukemia on October 10, 2007.

[10] The ARO decision on the leukemia appeal was issued on June 30, 2009. The appeal was denied.

[11] Unfortunately after the date of the ARO leukemia decision, there were further delays. It was necessary for the Tribunal Chair to determine whether the leukemia appeal would be joined with the batch appeals. Once that matter was determined, the Panel made interim rulings on how the matter would proceed. Then, on March 5, 2010, Mr. Paul Atkinson, the representative who had acted for the estate of J.R. for the purposes of the leukemia appeal at the Board, determined that he would no longer represent the estate at the Tribunal. It was necessary for the batch appeals to be further delayed while the estate obtained a new representative and while that representative had an opportunity to review the file materials. Mr. Leo Dillon became the new representative. His final submissions on the factual matters related to the leukemia appeal were received by the Panel in J.R. Post-Hearing Addendum No. 12 dated January 27, 2011. The Panel issued a second interim decision, Decision No.914/05I2, in the appeal of J.R., dated March 4, 2011, which made findings of fact about the leukemia appeal and referred additional questions to the assessor(s).

[12] In the meantime, Mr. Christie informed the Tribunal that he was no longer acting for the J. R. estate on appeals for skin cancer and an essential tremor. Mr. Christie had previously acted as the representative on those aspects of J.R.’s appeal despite the fact that J.R. and, subsequently,


his estate, had retained different representation for the leukemia appeal. Mr. Dillon clarified that he will now act for the J.R. estate with respect to all three matters.

[13] However, further delay was caused by the fact that Mr. Christie informed the Tribunal that the seven appellants whom he continued to represent now declined to consent to share theirmedical information with Mr. Dillon or the J.R. estate. The Tribunal’s practice is to prepare an Assessor Brief of the materials that are relevant to the questions that are addressed to the assessor. The parties are provided with the opportunity for submissions about the content of the Assessor Brief. If the draft Assessor Brief could not be sent to the representatives for comment, the matters could not proceed. It was necessary to provide the draft Assessor Brief to the parties’ representatives before it was sent to the assessor(s). Because all the appellants were raising a cluster argument, it was necessary for the assessor(s) to be in a position to review all the medical information about all the cancers in order to consider the appeal of each individual appellant.

[14] The Panel requested that TCO work with the parties to obtain a limited form of consent so that the material which has been placed in the draft Assessor Brief can be shared with Mr. Dillon.

[15] TCO was successful, ultimately, in obtaining the consent of all the appellants to the release of the draft Assessor Brief to the representatives, with one exception. Mr. G. O. died after the release of the interim decisions and before his consent could be obtained. The estate of G. O. did not consent to the release of G.O’s medical information to Mr. Dillon or to the Tribunal assessor(s). Mr. Christie wrote the Tribunal on May 4, 2011, asserting that the G.O. estate hadwithdrawn, that it did not consent to the release of its information, and that he would not be making any further submissions on its behalf.

[16] The Panel wrote Mr. Christie by memo dated June 10, 2011, referring him to the Tribunal’s Practice Direction: Adjournments and Withdrawals, which provides that a withdrawal by a party in the course of a Tribunal hearing requires Panel approval. We also informed him that the need for the Panel to request the estate’s consent to the release of the medical reports and personal information of G. O. to Mr. Dillon and to the assessor(s) would not be affected by thatestate’s withdrawing from the appeal. Because the materials are also relevant to the appeals of the other seven batch appellants, it remained necessary that the estate either consent to the release of those documents to the representatives and, ultimately, to the assessor(s), or that the access issues be formally adjudicated. Further, given that the initial fact finding Phase of the batch appeals is complete, we noted to Mr. Christie that there was little advantage to the estate inwithdrawing. The result would simply be that that estate would not be in a position to obtain benefits even if the other appeals were successful. We asked that Mr. Christie provide submissions about the estate’s reasons for not consenting to the release of the draft Assessor Brief to Mr. Dillon, or to the assessor(s), and for its request to withdraw, and for confirmation from Mr. Christie that he had discussed the effects of a withdrawal with the estate.

[17] Mr. Christie did not respond to our request for submissions. In her memo to the Panel of August 26, 2011, Tribunal Counsel indicates that Mr. Christie also did not respond to telephone calls. Given his prior communication, that he would no longer be making submission on behalf of the estate, and his failure to respond to our request for submissions, the Panel drew the inference that Mr. Christie was no longer acting for the estate. The Panel asked Tribunal Counsel


to write the G.O. estate representative directly and to provide the estate with the opportunity to provide submissions about 1) why the estate did not want the medical records sent to Mr. Dillon and/or to the assessor and 2) to confirm that the trustee understood the consequences of a withdrawal, including explaining that the Panel will address whether the medical materials are to be provided to Mr. Dillon irrespective of whether the G.O. estate were permitted to withdraw. The Panel suggested to Tribunal Counsel that she might wish to contact the estate representative directly to explain the request for submissions.

[18] Tribunal Counsel wrote the estate representative by letter dated August 26, 2011 providing an opportunity for submissions. Tribunal Counsel also telephoned the estate trustee and explained that Mr. Christie had not responded to the Panel’s telephone calls or correspondence and that the Panel was proceeding on the understanding that Mr. Christie was no longer representing the G.O. estate. In her memo to the Panel of August 26, 2011, Tribunal Counsel informed the Panel that the G.O. estate trustee then responded that the estate would not be providing any information, and ended the conversation. No response was received from the estate trustee to the letter of August 26, 2011. However, Mr. Christie wrote the Tribunal by letter dated August 31, 2011, clarifying that he remained the estate’s representative. However, he did not address the matters on which the Panel had requested submissions.

[19] Given that the time for submissions is now passed, the Panel has proceeded to consider the issues. In this decision we address:

• Whether the parts of the draft Assessor Brief that contain the personal information of G. O.may be released to the representatives for their comments before those materials are provided to the assessor(s).

• Whether the materials may be released to the assessor or assessors.

• Whether the G.O. estate will be permitted to withdraw.

[20] We have ordered that the draft Assessor Brief is to be provided to Mr. Christie and Mr. Dillon for their comments. However, the material that relates to G.O. in that Brief is to be put into anonymous form.

[21] Once the material related to G.O. in the draft Assessor Brief has been converted to anonymous form, and submissions have been received from the parties, the Brief may also be provided to the assessor(s) once they have been named. There is no further requirement for consent from the G.O. estate. We have dismissed the appeal of the G.O. estate and the estate is no longer a party to this appeal, for the reasons set out below.

[22] We have not allowed the G.O. estate to withdraw. Instead, we have dismissed the appeal of the G.O. estate.

[23] Our reasons for the rulings made in this decision are as follows.


(ii) The TCO submissions

[24] The Panel requested submissions from TCO to assist with the issues in this case. We have reproduced the main portions of the submissions of Ms. Danielle Allen, below. Her analysis is as follows:

(c) The Consent Process for Assessors

Case material contains personal information as defined in the Freedom of Information and Protection Privacy Act R.S.O. 1990, c. F.31 at section 2(1), and personal health information as defined in the Personal Health Information Protection Act 2004. S.O. 2004, c.3 sch. A at section 4.

In order for the Tribunal to release case material to a Tribunal assessor, who is a third-party to the adjudication process, the Tribunal first must ask for the consent of the worker(or their respective estate trustees). Generally, once an assessor is chosen by the Medical Liaison Office, the Tribunal Counsel Office will write to a worker (or their respective estate) to request that they sign an assessor consent form.

(d) Additional Consent Required for Batch Appeals

With batch appeals, an additional consent will be required to allow all of the workers in the batch appeal to share their personal information and personal health information with each other.

As is the case in this appeal, some appellants bring the appeals as a batch in order to forward a cluster argument to help establish a causal link between the workers’ exposures and their subsequent injury. The general premise is that a prevalence of disease among the exposed as compared to that of the unexposed assists in establishing causation. In order to make this cluster argument, each worker and their representative need to have access to the materials that go to the assessor, and the assessor report. In order to ensure that each representative has access to this material, the Tribunal will ask the workers to sign a limited consent form that allows the Tribunal to share the assessor brief and any future assessor reports with each worker and their representative.

(e) Current Objections and Requests in this Batch Appeal

At this time, the draft assessor brief has been prepared and the Tribunal has sought the limited consent of every worker (or their respective estate) to share the information contained in the assessor brief, and in future assessor reports, with the other workers and their respective representatives. Every worker (or their respective estate) has provided their limited consent except the G.O. Estate. The G.O. Estate is represented by Mr. Christie, who also represents six other appellants.

In addition, the G.O. Estate’s representative, Mr. Christie, has informed the Tribunal that the G.O. Estate wishes to withdraw their appeal, and will not sign the limited consent form. It is not clear whether the G.O. Estate will refuse to sign the consent forms that will be required for the Tribunal to release the Estate’s information to the assessors.

(f) G. O. Estate Information Contained in the Draft Assessor Brief

Taking a look at the Draft Assessor Brief (which has not been released to the parties due to the lack of consent from the G.O. Estate), it contains the following types information from the G.O. Estate:

Part I

This part contains documents from the G.O. Estate case materials, including:

• Interim Decision No. 912/05I


• ARO decision (3 pages)

• 30 pages of memos from the Board

• 44 pages of medical documents

• 2 pages of Board correspondence

Part II: Associated Claims

• This part contains information from other claims. There is no information about the G. O. Estate in this part.

Part III: Material Specific to the H.T. Fire

• This part contains reports, maps, and msds sheets about the H.T. fire. There is no information about the G.O. Estate in this part.

Part IV: General Epidemiological Literature

• There is no information about the G.O. Estate in this part.

• The interim decision is part of the public record. This means that the draft assessor brief contains 79 pages of confidential information about the G.O. Estate.

….

III. Applicable Law:

Section 134 of the Workplace Safety and Insurance Act, 1997 gives the Tribunal the ability to seek the expert opinion of a medical assessor (also known as a health professional).

Health professionals

134. (1) The chair of the Appeals Tribunal may establish a list of health professionals upon whom the tribunal may call for assistance in determining matters of fact in a proceeding. The list must not include employees of the tribunal or the Board.

….

Assistance by health professional

(4) The Appeals Tribunal may call upon a health professional on the list for assistance at any time before or during a proceeding.

Section 132 of the WSIA gives the Tribunal broad investigatory powers to compel testimony and the disclosure of evidence. In particular, section 132(1)2 allows the Tribunal to require persons to produce certain documents or things:


Certain powers

Powers re proceedings

132. (1) The Board and the Appeals Tribunal may do the following things in connection with a proceeding:

2. Require persons to produce such documents or things as the Board or tribunal considers necessary to make its decision. This power may be exercised in the same manner as a court of record in civil proceedings.

Section 131(2) of the WSIA gives the Tribunal broad powers to determine its own practice and procedure in relation to proceedings:

131. (1) The Board shall determine its own practice and procedure in relation to applications, proceedings and mediation. With the approval of the Lieutenant Governor in Council, the Board may make rules governing its practice and procedure.

Same, Appeals Tribunal

(2) Subsection (1) applies with necessary modifications with respect to the Appeals Tribunal.

Under these broad legislative powers, the Tribunal has adopted a number of practice directions that guide Tribunal practice and procedure. Relevant excerpts of the practice directions are below:

Practice Direction: Powers of Practice and Procedure

4.0 Control of Proceedings

4.1 In appropriate circumstances, the Vice-Chair/Panel may waive or modify any provision included in a Practice Direction.

4.2 The Vice-Chair/Panel may make any rulings necessary to control the proceedings and prevent abuse of process.

Practice Direction: Disclosure, Witnesses, and the Three-Week Rule

2.0 Purpose of Disclosure

2.1 The purpose of the Tribunal’s disclosure practices is to give the parties, the Tribunal and its adjudicators a chance to:

• understand what the case is about

• prepare for the hearing


• consider if they can resolve the case without the need for a hearing

• prepare documents of the evidence so that the parties and the Vice-Chair or Panel all have the same information for the hearing

• identify other information that may be needed at the hearing. This reduces adjournments and inquiries after the hearing; and

• prepare for the hearing (e.g. allow enough time for the witnesses to testify).

3.0 Authority for Tribunal Disclosure Rules

3.1 The Workplace Safety and Insurance Act allows the Tribunal to:

• determine its own practice and procedure (s. 131)

• summon witnesses (s. 132), and,

• require parties to provide documents and things which the Tribunal considers necessary to make its decision (s. 132).

3.2 The Tribunal has adopted a general practice about disclosure.

4.0 Disclosure of Documentary Evidence

4.1 Parties must disclose all available evidence with the Confirmation of Appeal (COA) form. See Practice Direction: Confirmation of Appeal and Hearing Ready Letter.

4.2 Parties must disclose all other evidence to the Tribunal and to the other parties no later than three (3) weeks before the hearing date. Parties should take particular care to disclose additional evidence (e.g. medical reports) they intend to use at the hearing that became available after filing the COA.

Practice Direction: Medical Information Requested by the Tribunal

4.0 Medical Assessor

4.1 A Tribunal Vice-Chair or Panel may request a medical expert, known as an “Assessor”, to give an opinion about the medical issues in an appeal. If a Vice Chair or Panel makes such a request, a copy of the relevant file information is sent to the Assessor, along with specific questions from the Vice-Chair or Panel. The Assessor’s opinion is usually provided in a written report, which is shared with the parties. The process for obtaining a report from an assessor is described in the Practice Direction on Post-Hearing Procedure.


Practice Direction: Post-Hearing Procedure

5.0 Report from a Medical Assessor

5.1 The Tribunal is authorized to maintain a list of independent health professionals. These medical experts, known as Assessors, can provide assistance on medical issues in appeals when requested by a Vice-Chair or Panel.

5.2 When a Vice-Chair or Panel wants to request an opinion from an Assessor, they will advise Tribunal Counsel Office. The Medical Liaison Office will then select an Assessor with a specialty relevant to the type of opinion that is required. A health professional who has already been consulted by a worker about their case cannot be used as an Assessor.

5.3 Usually the Assessor is asked to review the medical documents and send a written opinion to the Tribunal. Sometimes the Assessor is asked to examine the worker before completing the written report. The Vice-Chair or Panel may request the Assessor to testify at an oral hearing, but usually a written report is enough. If an Assessor does testify, he or she is the Tribunal’s witness.

5.4 The Vice-Chair or Panel will determine the questions they want the Assessor to answer. This is usually done after findings about the facts of the case have been made. While the Medical Liaison Office may have general suggestions or the parties may have requests regarding what questions should be asked, it is up to the Vice-Chair or Panel to decide what questions will be asked of an Assessor.

5.5 The Medical Liaison Office prepares the materials to be sent to the Assessor. Usually, all medical information, as well as correspondence and memos related to the medical issues, is included in an Assessor Brief. The Vice-Chair or Panel and the parties are provided with an opportunity to comment on the documents contained in the Brief before it is sent to the Assessor. The Vice-Chair or Panel may issue instructions about the documents in the Brief after considering these comments.

5.6 The Tribunal sends to the Assessor the questions approved by the Panel or Vice-Chair, the Assessor Brief, and the Interim Decision or post-hearing memo containing the Vice-Chair or Panel’s findings of fact. The Medical Liaison Office’s covering letter instructs the Assessor to provide his or her medical opinion based on the findings of fact.


5.7 When the Tribunal receives the report from the Assessor, it is provided to the Vice-Chair or Panel and all the parties to an appeal. The Parties will have an opportunity to make submissions on an Assessor’s report before the Vice-Chair or Panel makes a final decision on the appeal.

…

7.0 Post-Hearing Submissions

7.1 Parties will be given an opportunity to make submissions on all post-hearing evidence. According to the Vice-Chair’s or Panel’s instructions, these submissions may be made at a reconvened hearing, but usually written submissions are requested.

7.2 Unless otherwise specified by the Vice-Chair or Panel, all parties to an appeal will be asked to provide their initial submissions simultaneously and by a specific deadline date. All parties will then be given additional time to provide submissions in reply to those of the other party (or parties) if they so choose. Written submissions should be forwarded to the Tribunal Counsel Office and also copied to all other parties to an appeal.

7.3 Parties should make every effort to ensure their submissions are received by the deadline date. A Vice-Chair or Panel may choose not to accept written submissions that are received after the deadline date. If an extension is required, the party should contact the Tribunal Counsel Office with the reasons for the extension request. The Tribunal Counsel Office may seek instructions regarding the extension request from the Vice-Chair or Panel hearing the appeal.

Practice Direction: Access to Workers' Information When the Issue in Dispute is at the Tribunal

2.0 The Tribunal's Authority to Provide Access

2.1 The Act does not discuss access to a worker’s file at the Tribunal. The Tribunal does have the authority to determine its own practice and procedure. Through this Practice Direction the Tribunal exercises its authority to determine its own practice and procedure on the issue of access to a worker’s file when there is an appeal at the Tribunal.

3.0 Access Principles

3.1 The Act sets out when and how the Board provides access to both employers and workers. This Practice Direction incorporates the principles on access found in the Act. In particular, the Tribunal recognizes that both parties need access to relevant information in order to have a fair hearing.

3.2 This Practice Direction also incorporates the principles found in the Freedom of Information and Protection of Privacy Act (FIPPA) where


applicable. FIPPA covers access to information and the right of individuals, including workers and individuals mentioned in a worker’s file, to protection of their personal information.

4.0 Consent to Access and Employer Undertakings

4.1 Workers must indicate on the Notice of Appeal or Response Form if they consent to release to employers who appear to the Tribunal to be interested parties:

• the claim file

• related claim files, and

• any other information sent to the Tribunal.

4.2 The worker may consent to the release of all or part of these documents. The worker has the right to review the claim files before consenting to release.

4.3 When an employer participates in an appeal, the employer receives a Notice of Appeal for Employers or Response Form. The employer must sign the Undertaking on the form that:

• the employer and any representative it retains will not disclose any worker information to a non-party, except in a form calculated to prevent the information from being identified with a particular worker or case.

• the information is used for workplace safety and insurance purposes only.

5.0 What Happens When the Worker Does Not Consent?

5.1 If the worker does not consent to the release of information, both the worker and the employer are asked to provide written submissions to the Tribunal about why access should or should not be granted.

5.2 Parties can make submissions on the issues of whether the information is:

• relevant to the issue in dispute or

• prejudicial to the worker and if so in what way.

5.3 Prior to sending an access appeal to a Vice-Chair or Panel for a decision, the Tribunal may contact the parties to see if the access issue can be resolved through mediation (see the Practice Direction: Mediation).

5.4 Most access appeals are decided by a Vice-Chair or Panel by a written process based on the written submissions and review of the documents in question (see the Practice Direction: Written Appeals). Where an appeal raises unusual or extraordinary issues, the Tribunal may decide an oral hearing is needed.

5.5 The Vice-Chair or Panel will decide if access to the information should or should not be granted to the employer. In exceptional circumstances, the Vice-Chair or Panel may impose conditions on access. A written decision will be sent to the parties.

5.6 If access is granted to the employer, the information is released bythe Tribunal fifteen days after the decision is released.


6.0 Other Situations Where Full Access May Not Be Granted

6.1 The Tribunal may identify personal information in records such as the items identified in Schedule A (see below) that will not be released. Information which is not relevant to the issues on appeal will not be released. Information may be excluded when the relevance is outweighed by the sensitive or prejudicial nature of the information. The Tribunal may withhold the information and refer the issue to a Vice-Chair for a decision.

6.2 If the Tribunal is concerned that information may be harmful to a worker if released directly to the worker, the Tribunal will provide copies of the information to the worker’s treating physician and advisethe worker or the representative that it has done so. The Tribunal will confirm with the worker or representative whether the information has been released by the treating physician.

6.3 If the worker objects to this procedure, or if the treating physician does not release all or part of the information, the matter will be referred to a Vice-Chair. The Vice-Chair will decide how or whether the information should be released. The process outlined in section five will apply.

7.0 Release of Information to Employer Physicians

7.1 Section 59(6) of the Act provides that the employer and employer’s representative shall not disclose any health information except in a form calculated to prevent the information from being identified with a particular worker or case.

7.2 For purposes of clarification, a physician retained by an employer to provide an expert opinion may be an employer representative under section 59(6) if:

• a copy of the retainer agreement is provided to the Tribunal; and

• the physician has undertaken to use the health information only for the purpose of providing an expert opinion for the hearing, to return the health information to the employer when it is no longer needed, and to refrain from disclosing the health information except in a form calculated to prevent the information from being identified with a particular worker or case.

Practice Direction: Adjournments and Withdrawals

2.0 Adjournment or Withdrawal

2.1 An adjournment means that the hearing will not go ahead on the scheduled day but will continue on another day.

2.2 A withdrawal occurs when the appellant advises the Tribunal that he or she does not wish to proceed with the appeal, and the Tribunal closes the file without making a decision about the merits of the case.

6.0 Withdrawals

6.1 Once a hearing is scheduled, a party can withdraw their appeal in writing at any time before the scheduled hearing date. Where more than one party is appealing, the withdrawal of an appeal by one party will


not affect the appeal of the other party.

6.2 Once a hearing has begun, a party may request permission to withdraw the appeal at the hearing. The Vice-Chair or Panel:

1. may grant the request and may issue directions or conditions concerning any future appeal; or

2. may refuse the request if it would be an abuse of process to grant it.

If the Vice-Chair or Panel refuses to allow the appeal to be withdrawn, it may

• decide the case based on the available information

• adjourn the case, with or without conditions

• issue directions for the future hearing of the case

• make any other order they determine is appropriate.

6.3 Where an appellant withdraws the appeal, the Tribunal closes the file and returns it to the Board. If a parties want to appeal later, they must file a new appeal. Since the time limit will generally have expired, the party can only appeal if the party satisfies the Tribunal that a time extension should be granted. See Practice Direction: Time Extension Applications for information on how to apply for a time extension and the test for obtaining a time extension.

[25] Ms. Allen proceeds to make the following submissions about this law and its application to the issues in this appeal.

IV. Submissions:

a. The Panel’s Broad Powers Over Appeal Proceedings and Information:

The Panel has broad powers over appeal proceedings and information related to the appeal. In accordance with section 131(2) of the WSIA, the Tribunal may control its own practice and procedures in relation to appeals. In accordance with the Tribunal’s Practice Direction: Powers of Practice and Procedure, the Panel has the authority to waive or modify provisions of the Tribunal’s practice directions in appropriate circumstances, and to make any rulings necessary to control the proceedings and prevent an abuse of process. Section 132(1)2 allows the Panel to require a person to produce certain documents. Section 5 of the Tribunal’s Practice Direction: Access to Workers' Information When the Issue in Dispute is at the Tribunal permits a Panel to release a worker’s personal information or personal health information to another party in the appeal if the information’s relevancy to the issue in dispute outweighs its prejudice to the worker. Section 134(4) of the WSIA allows a Panel to call upon the assistance of a Tribunal assessor at anytime during the course of a proceeding. Finally, the Tribunal’s Practice Direction: Adjournments and Withdrawals allows the Panel to grant or refuse a request for withdrawal after a hearing has started.

Given these very broad powers, it is my position that it is within the Panel’s authority whether or not to go as far as to:

(1) Order the release of the assessor brief to Mr. Dillon and the other appellants without the G.O. Estate’s consent;


(2) Order the release of the assessor report to Mr. Dillon and the other appellants without the G.O. Estate’s consent;

(3) Order the release of the Assessor Brief to the assessor without the G.O. Estate’s consent; or

(4) Grant or deny the G.O. Estate’s request to withdraw its appeal

That said, it is also my position that the Panel should exercise its broad powers over appeal proceedings and information related to an appeal in a way that a) conforms to the Tribunal’s practice directions to the extent that this is possible; b) affords the appropriate degree of procedural fairness to all parties to the proceeding, such as the right to notice, the right to make submissions, the right to reply, and the right to know the reasons for a decision; (see Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817)and c) appropriately balances one party’s right to privacy over another party’s right to disclosure of relevant information about the issue in dispute.

With this in mind, in the following sections I will review Tribunal and Court case law to provide some guidance for the Panel when exercising its broad powers. I have also outlined some options for the Panel and the parties going forward.

b. Options for proceeding when a party to a batch appeal refuses to consent to the release of some of their personal information or personal health information:

1) Disclosure of the Assessor Brief to Other Workers in the Batch Appeal:

As stated in section 3 of the Tribunal’s Practice Direction: Disclosure, Witnesses, and the Three-Week Rule, parties must disclose all documentary evidence in advance of the hearing. The Practice Direction asks parties to be particularly mindful of disclosing the medical evidence they intend to rely on. The Practice Direction states that the purpose of disclosure at the Tribunal is to give parties a chance to understand what the case is about, and to prepare for the proceedings.

The Tribunal’s Practice Direction on disclosure is in line with the principles of procedural fairness at common law. At common law, the right to disclosure is an element of procedural fairness where in order to ensure a fair hearing parties are entitled to the right to know the case they must meet, and the right to reply. The content of procedural fairness in administrative proceedings is flexible, and determined by a five-factor evaluation explained by the Supreme Court of Canada in Baker. This means that “[t]he nature, scope and timing of a party or tribunal’s disclosure obligation will vary in each case, depending on the particular statutory scheme, the tribunal’s own rules, and a number of other factors.” ….

Applying this to appeals at the Tribunal, the content of procedural fairness and required level of disclosure is high given that cases involve an individual’s livelihood (that is, entitlement to benefits that would cover what a worker may have otherwise earned from employment).

As many appeals at the Tribunal involve confidential medical evidence, sometimes there will be competing interests between one party’s right to disclosure of documentary evidence, and another party’s right to privacy. Accordingly, the Tribunal has adopted a Practice Direction: Access to Workers' Information When the Issue in Dispute is at the Tribunal to address these competing interests. The Practice Direction states that if a worker does not consent to the release of his or her information to an employer, a Panel will invite written submissions on how best to balance the relevance of the material to the issue in dispute against the prejudice to the worker the release of the information will cause. An early Tribunal case [Decision No. 201 at paragraph 14] summarized these competing interests as follows:

These are, on the one hand, the right of the worker to have the information in his or her file kept confidential and, on the other hand, the right of the employer to disclosure under


the rules of natural justice and procedural fairness. The employer can make effective representations only if it has the essentials of the evidence on the issues to be considered by the hearings panel. The Practice Direction goes on to conclude that, in balancing these interests, the employer's right to access should ... be limited to receiving only those documents which are relevant to the issues[s] under appeal ... The Panel accepts relevance as the main criterion in granting access to an employer participating in an appeal respecting worker benefits.

Subsequent Tribunal decisions have applied a two-part test when balancing a worker’s privacy rights against the employer’s need to have access to relevant information to prepare its case. First, there must be a genuine issue in dispute. Second, the documents sought must be relevant to the issue in dispute… Evidence is relevant if it tends to prove or disprove a fact at issue. Generally, relevant material must be disclosed unless there is a specific identifiable prejudice to the worker… Whether or not a case has merits is generally not a consideration. Information that is prejudicial to the worker may be removed or redacted. Further, the rules of natural justice require that the same materials be sent to all participating parties. [see Decision Nos. 1786/08I at para 5, Decision No. 63/10I at para. 14, Decision No. 63/10I at para. 13, and Decision No. 1815/09I.]

In the case of a batch appeal where one worker is not consenting to the release of their information to other workers, and part of the argument for causation includes a cluster argument (by its very nature dependant on a large number of appellants), it is my position that the same principles of disclosure and access between employers and workers discussed above should be applied. Firstly, the Panel should determine if there is an issue in dispute. Secondly, if the documents are relevant to the issue in dispute, the documents should be released barring any specific identifiable prejudice release of this information would cause the G. O. Estate. Given that this is a batch appeal, I would also add a third factor: the Panel should also take into consideration any prejudice withholding information would have on the advancement of the other seven workers’ cluster argument given the stage of proceedings.

If the assessor brief is released to both representatives for comment, there are two possible options:

1) The Assessor Brief could be released as it now stands, including all 79 pages from the G.O. Estate case material.

II)The Assessor Brief could be released with the 79 pages from the G.O. Estate case material redacted so that G.O.’s name is blackened out. While this may have no practical effect for Mr. Dillon, as he will be able to deduce which materials are G.O’s by process of elimination… the Tribunal will nevertheless not have overtly disclosed the information (this option would have more practical application so far as the assessor is concerned, as noted below).

2) Consent to Release the Assessor Brief to a Tribunal Assessor:

As stated above, assessors are third-parties to an appeal. They are expert witnesses who are called by the Tribunal, and are generally asked to review the case materials (or parts thereof) and write an expert report. As parts of a worker’s case materials contain personal information and personal health information…the Tribunal will seek the consent of the worker to release the case materials to the assessor. Assessors are required to treat the workers’ information in a confidential manner.

There are three instances in the Tribunal’s case law where a worker has refused to consent to the release of their case material to a Tribunal assessor. In two cases, [Decision Nos 1491/97 and 825/92] the panel held that they would instead decide the case based on the available evidence. In one case, the Vice-Chair instructed the Tribunal Counsel Office to anonymize the case materials before sending them to the assessor,


however there was little analysis of privacy issues or procedure in the decision. [see Decision No. 1724/03].

The main difference between these cases and the present appeal is that this is a batch appeal, where appellants wish to rely not only on their own evidence, but also the evidence from other workers. If the Panel were to forego the assessor process in the G.O.Estate due to lack of consent, this would mean the removal of the G.O. Estate’s information from the material that will go to the assessor. This may prejudice the advancement of the cluster argument by the remaining appellants since it could reduce the amount of information available to the assessor. As explained above, cluster arguments are dependent on a large number of people who may have a certain kind of exposure history and disease as compared to the general population without the exposure.

It is therefore helpful to refer to the process in place for when an employer wishes to commission an expert report by a third-party physician, but does not have consent to release the worker’s case materials to the expert third-party physician. Section 7 of the Tribunal’s Practice Direction: Access to Workers' Information When the Issue in Dispute is at the Tribunal, created in accordance with section 59(6) of the Act, provides that an employer may release the case materials without the worker’s consent provided they remove all of the information that would allow the third-party physician to identify the worker. In addition, it requires the employer to submit a copy of the retainer agreement, and for the expert physician chosen by the employer to undertake to return all of the case materials provided, and to issue their report in a manner that prevents the identification of the worker or the case.

Were the G.O. Estate to refuse to consent to the release of their material to a Tribunal assessor, the Tribunal would be in a position analogous to an employer who does not have the consent of the worker to release the case materials to an expert they retain.

Going forward, I would therefore suggest that if the G. O. Estate refuses to consent to the release of their material to the Tribunal assessor, the Panel should weigh the G.O. Estate’s objection against the prejudice the removal of the material would cause to the other seven appellants. If the Panel finds that the G.O. Estate information should remain in the materials being sent to the assessor, it is my position that G.O.’s name should be redacted from the material, and that the Tribunal assessor should undertake to return the materials to the Tribunal and to write their report in a manner that does not make G.O.identifiable.

[26] We note that Ms. Allen also addresses whether the contents that relate to G.O. should be moved to the part of the Assessor Brief that relates to Associated Claims, if the G. O. estate is no longer a party to the appeal. However, as discussed below, we have considered that approach too confusing, given that an Interim Decision has been issued for G.O. referring to him as an appellant.

[27] Ms. Allen goes on to address the request of the G.O. estate to withdraw, as follows:

c. Withdrawing an appeal that is part of a batch appeal after a hearing has taken place, the party has given testimony at the hearing, findings of fact have been made, and the batch appeal is ready to be referred to a tribunal assessor:

Section 6 of the Tribunal’s Practice Direction: Adjournments and Withdrawals states that once a hearing has begun, a party must seek the Panel’s permission to withdraw an appeal. Upon receipt of this request, the Panel may grant the request and may issue directions or conditions concerning any future appeal; or may refuse the request if it would be an abuse of process to grant it. Once an appeal is withdrawn, it is likely that the strict time limit for appealing a decision has passed, and if a party wishes to appeal again they would have to request a time extension.


This practice direction formalizes a series of Tribunal decisions decided before the practice direction was introduced that addressed how to balance a party’s request to withdraw after a hearing had already started against a) the time and resources already spent on the appeal by both the Tribunal and any responding parties; and b) the prejudice to a responding party if there is no final decision and the matter could be litigated again in the future.

When applying the Practice Direction, it is my position that there are two main factors the Panel should consider and balance when determining whether or not the G.O. Estate should be permitted to withdraw:

1) Are there compelling reasons as to why the G.O. Estate wishes to withdraw the appeal?

In order to weigh the G.O. Estate’s interest in withdrawing their appeal, the Panel should consider the specific reasons the G.O. Estate gives to support their request to withdraw.

It is my submission that the further into the appeal process the proceedings are, the more compelling the reasons for withdrawal will have to be. For instance, in Decision No. 32/97, a half day hearing took place before a Tribunal Panel where the worker gave testimony. An interim decision was released by the Panel instructing the Tribunal Counsel Office to seek out a significant amount of further medical information. The worker withdrew their consent to release the medical information to the employer after it had been obtained by the Tribunal Counsel Office, and another oral hearing was held to address this issue. After the Panel ruled that disclosure of the evidence to the employer was necessary, the worker requested to withdraw the appeal. The worker did not provide any reasons for the request to withdraw. The Panel found that the request to withdraw the appeal so late in the process was “tantamount to an abuse of process” (discussed more below).

2) Would withdrawal at this late date be an abuse of process?

In quoting a decision from the Ontario Court of Appeal, the Supreme Court of Canada has held that

[t]he doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. [Toronto (City) v. Canadian Union of Public Employees (C.U.P.E., Local 79, [2003] 3.S.C.R. 77 at paragraph 37.

Generally, the abuse of process concept has been used to prevent re-litigation of issues that would use up judicial resources and prevent finality where the strict requirements of issue estoppel are not met… Outside of the Tribunal’s practice direction on withdrawal and issues of finality and re-litigation, the Tribunal applies the concept narrowly and only in the clearest of cases. [See Toronto (City) at paragraph 38 and Decision No. 996/08I2 at paras 34-35.]

It is my position that there are four main factors the Panel should consider when determining whether the G.O. Estate’s request to withdrawal would be an abuse of process:

(I) Whether the withdrawal of the G. O. Estate would prejudice the other workers who are a part of the batch appeal:

• As stated above, because the workers are making a cluster argument, they are dependent on being able to rely on information from each other’s appeals in order to put forward their case. At this late stage of the proceedings, the amount of prejudice


a withdrawal of the G.O. Estate would cause will depend on whether or not the materials from the G.O. Estate’s appeal can be used by the other workers, which is addressed above.

(II) Whether the proceedings can continue without the G.O. Estate’s co-operation:

• Decision No. 32/97 and Decision No. 1102/99 allowed an appellant to withdraw part of their appeal because it found that even though the withdrawal was an abuse of process, it would be difficult to continue to adjudicate the appeal without the appellant’s cooperation.

(III) Whether the Tribunal has an interest in the finality of a decision given the amount of resources already expended adjudicating the appeal thus far:

• If a Panel grants a request to withdraw an appeal, this does not constitute a final decision of the Tribunal, and an appellant is free to bring a second appeal on the same issue (barring any time limit issues). [See Decision No. 760/99F]. The potential of a party bringing the same appeal to the Tribunal twice puts possible strains on Tribunal resources. It is my position that the more resources the Tribunal has already used on an appeal, and the further into the process of the appeal, the higher the Tribunal’s interest is in the finality of a decision to prevent a strain on Tribunal resources.

• In Decision No. 1102/99 the Panel made a ruling on part of the appeal so as to give finality to one respondent about whether or not they were an employer. Thus, if the issues can be separated, the Panel may make a final decision on some issues, and allow the withdrawal of others.

(iii) Submissions of Mr. Dillon and of Mr. Christie

[28] As already noted, we have not received any submissions from Mr. Christie although he was given an opportunity to respond to Ms. Allen’s submissions. In addition the estate representative declined to discuss the matter with TCO counsel when she was telephoned.

[29] Mr. Dillon submits that he should be provided access to the Assessor Brief and the assessor reports when received.

(iv) Analysis and conclusions

(a) The release of the draft Assessor Brief to the representatives

[30] The draft Assessor Brief is to be revised to anonymize the material that relates to G.O. and is then to be released to Mr. Christie and Mr. Dillon for submissions. Consistent with the Tribunal’s practice for the release of medical records to an employer without consent, the release is to take place 15 days after the date of this decision. The materials are to be used solely for workplace safety and insurance purposes.

[31] In this case, G. O. testified at the Tribunal appeal hearing while he was alive. His testimony was relied on by the Panel in making findings of fact about the general exposures of fire-fighters and about the exposures of the seven other appellants who were present at the H.T. fire. The Panel issued 8 interim decisions, in the 8 batch appeals, each of which relied on and referred to the evidence of G.O. The Panel referred questions to assessors based on those findings in each of the batch appeals. Therefore the evidence that relates to the appellant G.O. is not only part of the record of the G.O. appeal. It is part of the record of the other seven batch


appeals. The Panel has already made orders with respect to that evidence in the seven other batch appeals.

[32] In our view, it is too late for the G. O. estate to refuse, in effect, to grant its permission forthose materials to be sent to the assessor(s). The Panel has already made orders in the interim decisions which, by implication, require that the relevant portions of the record be sent to the assessor(s). Indeed, it seems implicit in G.O.’s initial request that his appeal be treated as part of the cluster that he had consented to the release of information relevant to the cluster appeal. It is difficult to understand on what other basis a request that a worker’s cancer be treated as part of a cluster of cancers involving other appellants could proceed.

[33] While G.O.’s estate is no longer interested in pursuing G.O.’s appeal, the other seven appellants in the cluster case remain interested. In order for the matter to proceed, it is necessary for both Mr. Christie and Mr. Dillon to be in a position to make submissions about the content of the draft Assessor Brief. It is also implicit in the Panel’s prior orders that the representatives of all the parties will require access to the draft Assessor Brief first in order to make submissions on whether the correct materials are contained in the Brief and secondly, ultimately, in order to be sufficiently informed to make submissions about the assessors’ reports when received. The representatives must have access to the materials that have been sent to the assessor in order to make those submissions.

[34] We agree with TCO that the questions that apply to access for employers are relevant here. There is an issue in dispute. The issue is whether the exposures of the batch appellants were causative in their cancers based, inter alia, on the cluster evidence. The materials are relevant to that issue. They are for the most part the medical records relating to the cancers. In our view, there is nothing of any particular prejudice to G.O. or the G.O. estate or to the other appellants that the Panel can ascertain in those materials. The Panel is satisfied that the merits and justice of the cluster argument requires the consideration of all members of the cluster.

[35] However, given the lack of consent to the release of the documents by the G.O. estate, the documents that contain personal information of G.O. that are found in the Assessor Brief are to be anonymized. TCO is asked to replace references to the worker’s name with the initials G.O. because that is how he is referred to in the first interim decision. As Ms. Allen notes, that will not make him anonymous to Mr. Dillon, as a practical matter, because, when the Chair ordered that the J.R. leukemia appeal was to be added to the batch appeals, the effect was that Mr. Dillon learned the names of the other appellants. In our view, a party to an appeal generally has the right to know the names of the other parties, although that information is not publicly available. In any event, there was no objection to the disclosure that G.O. was a party to the appeal at that time. Further, as already noted, we do not consider transferring the G.O. materials to the associated claim files a practical solution because it would confuse the matter. The first interim decisions have been issued on the basis that G.O. was an appellant.

[36] We do not consider that there is any greater prejudice involved in Mr. Dillon being placed in the position that he can identify the medical records of G. O. than there is when medical records are released to an employer or to an employer representative who, as a party to the appeal or as the representative of a party to the appeal, will know that they are the medical records of the worker.


[37] However, because it is intended that the Assessor Brief will subsequently be sent to the assessor(s), the document should be anonymized before it is sent to the representatives, in order that they may review it in the form that it is proposed will be sent to the assessor(s).

[38] Therefore the draft Assessor Brief is to be anonymized with respect to the medical records of G.O. and then is to be sent to both representatives 15 days after the date of this decision. The records are released to Mr. Dillon and to the J.R. estate on the condition that they shall be used solely for workplace safety and insurance purposes.

(b) The release of the Assessor Brief to the assessor(s)

[39] It follows from the above that, subject to any amendments that result from the review process for the draft Assessor Brief, the anonymized Assessor Brief is be sent to the assessor(s).

[40] However, there are two qualifications to this order, which must be dealt with before this aspect of our order can become final.

[41] First, if there are amendments to the draft Assessor Brief after the submissions are received on the form of the draft Brief, the Panel will need to address whether those changes require any amendment to this ruling.

[42] Secondly, the names of the assessors are not yet known. The Tribunal’s Medical Liaison Office will not arrange for assessors until the issues related to the release of the draft Assessor Brief have been addressed. When the assessors are named, therefore, the parties will be asked to consent to the release of the Assessor Brief to those named assessors. The new consent is particularly important because of section 134(5) of the WSIA, which provides that the Tribunal cannot call upon a health professional without consent if the health professional has previously examined the worker, has previously treated the worker or a member of his family, has consulted with the worker, or is a partner to a health professional who is described in these provisions. In order to ensure that these requirements are met, and also because of the nature of the personal information, the Tribunal’s practice is to request the consent of parties to the use of the specific named assessors and to ask parties to disclose whether any of these provisions apply.

[43] However, we have determined below that G.O. is not to remain a party to this appeal. Therefore section 132(5) does not apply. It applies when the Tribunal is obtaining the assessor’s report for the purposes of the worker’s appeal. Given our determination, below, the Panel is not obtaining the assessor(s) reports for the purposes of G.O.’s appeal. It is obtaining the reports for the purposes of the appeals of the other seven appellants and, in particular, for the purposes of responding to the general questions posted in the other appeals.

[44] Therefore, while it will be necessary for TCO to obtain further consents from the other parties to the batch appeals when the names of the assessors are known, it is not necessary for TCO to obtain consent from the G.O. estate as long as the materials with respect to the identification of G.O. are anonymized.


[45] When the materials are sent to the assessor(s), the assessor(s) are to be asked to undertake to return the materials to the Tribunal and to write their report in a manner that does not make G.O. identifiable. This direction is analogous to the requirements imposed by the Tribunal’s Practice Direction when employers release medical information to a physician without consent from the worker, as Ms. Allen describes, except that, in our view, there is no need for a retainer agreement other than in accordance with any usual processes used by MLO to obtain assessors.

(c) The request to withdraw the appeal

[46] We turn now to the issue of whether the G.O. estate may withdraw its appeal at this late stage of the hearing process. We have determined that the G.O. estate may not withdraw the appeal. In our view, for us to allow the estate to withdraw at this late date would constitute an abuse of process. Instead, we have dismissed the appeal of the G.O. estate. The G.O. estate may not bring this appeal back to the Tribunal.

[47] We have adopted the reasoning of Decision No. 525/07. That decision reviews the law as follows:

(b) Tribunal Decisions

Generally Tribunal decisions are consistent in finding that when an appeal is the subject of a withdrawal decision, it is necessary for the party to make an application for an extension of time to appeal in order for the matter to proceed again at the Tribunal. However, a withdrawal decision does not dispose of an appeal. It is open to a party to make an application for an extension of time to appeal. See the analysis in Decision No. 760/99F.

Tribunal Decisions have not been consistent in considering whether a Vice-Chair orPanel has jurisdiction to dismiss an appeal without considering the merits of the case. Several Tribunal decisions have found that the Tribunal’s jurisdiction to dismiss an appeal for procedural reasons was limited by the requirement to adjudicate the case on its merits and justice. Other Decisions have proceeded to dismiss appeals in certain types of circumstances without a hearing on the substantive “merits” of the case.

(1) Decisions which find that the Tribunal’s jurisdiction is limited

In Decision No. 82/94, dated March 27, 1996, the Panel considered the Tribunal’s powers under section 90 of the pre-1997 Act, which is the predecessor provision to section 131 of the WSIA. The Panel found that a Tribunal panel has a right under section 90 to refuse a withdrawal request if it intends to proceed to exercise jurisdiction to adjudicate the appeal. However, in view of the obligation to decide each case on the merits and justice, a panel did not, in the view of that Panel, have the power to dismiss or limit the appeal, because a withdrawn appeal has not been heard on the merits. The Panel found that preventing or limiting the appeal would be tantamount to dismissing an appeal without adjudicating the merits. The most a Panel could do, in the view of that Panel, would be to recommend that, in the event of a subsequent appeal, the new hearing panel consider imposing conditions.

This approach is also reflected in Decision No. 3/92, dated March 19, 1992. In thatDecision, the Panel declined a request that a withdrawal be allowed on a with prejudice basis, despite the consent of the worker to that stipulation. The Panel noted the statutory provisions for a full hearing and the prohibition against the waiver of rights under the Act (section 73(1) and 18 of the Act as then in force, R.S.O. 1990).


In Decision No. 32/97, issued March 16, 1998, the Panel determined that a request towithdraw at a late date was tantamount to an abuse of process. However the Panel allowed the withdrawal. The Panel stated that it was of the view that it had no alternative but to grant the request for a withdrawal, because it determined that the appeal could not be decided on the merits without the continued participation of the appellant. The Panel directed that the worker be required to obtain leave if the worker wished to pursue the appeal again.

In Decision No. 1102/99, dated January 25, 2001, the Panel found that a Tribunal panelhas the power to issue directions or conditions governing future applications after a withdrawal only if the conditions do not fetter a future panel. In that case the Panel denied the request to withdraw the appeal as it affected one party, a municipality. The issue had been whether that party was an employer of the worker, and the evidence had satisfied the Panel on that issue.

Despite the worker’s request for a withdrawal, the Panel proceeded to rule that the municipality was not the employer. It allowed the withdrawal on the issue of whether a hotel or a corporation which owned the hotel was the employer, finding that it would be difficult to adjudicate that issue without the continued co-operation of the worker. However it noted that any further appeal by the claimant would be subject to the time limit provisions.

(2) Decisions that dismiss appeals

On the other hand, a number of Decisions dismiss appeals, or approve the withdrawal ofa party subject to the condition that the appeal may not be brought back to the Tribunal, which, in effect, constitutes dismissing the appeal.

In Decision No. 647/97, dated May 29, 2001, a Panel of the Tribunal approved awithdrawal as follows:

After considering the submissions, the Panel directs that the employer’s appeal is withdrawn, and that the employer is not entitled to bring any further appeals from the Reinstatement Officer’s decision referred to in these proceedings.

In Decision No. 350/96, dated June 7, 1996, the Tribunal Panel also authorized awithdrawal subject to the express condition that the worker could not bring the appeal back to the Tribunal.

In Decision No. 95/95, dated February 9, 1995, the Panel also allowed a withdrawal withprejudice. The Decision refers to the worker’s understanding that the appeal could not berevived.

I note also Decision Nos. 492/06 and 876/00, referred to by Mr. Liversidge, above. Those decisions explicitly dismiss appeals for procedural reasons.

In Decision No. 760/99R the Panel noted that these decisions suggest that, in the view ofthose Panels or Vice-Chairs, the words “merits and justice” are broad enough to extend toconsideration of procedural matters that might constitute abuse of process. Given that thedecisions effectively dispose of the appeals through an adjudicative decision, that Panel inferred that these Panels or Vice-Chairs did not consider their rulings inconsistent with the prohibition against a worker waiving his or her right to appeal.

However these Decisions do not explicitly address this reasoning or the reasoning of thePanels in the other Decisions discussed above.

I note also Decision Nos. 271/01, 271/01R and 271/01R2. Decision No. 271/01 dismissedan appeal based on a consideration of procedural matters. Decision No. 271/01R2 confirmed that approach. That Panel stated:


Decision No. 271/01 dismissed the worker’s appeal “for lack of action.” TCO argued that it is important for the Panel to consider the meaning of these words in deciding whether Decision No. 271/01 was a final disposition of the appeal (in which case, this is a request for reconsideration) or whether it was awithdrawal (in which case, this would be an application for time extension).

As indicated by Tribunal Counsel, Decision No. 760/99F did distinguish withdrawal decisions (in which there had been no final disposition of the appeal) from decisions denying or dismissing an appeal. Most withdrawal decisions involve an appellant (party) who asks the Tribunal to remove his/her appeal from the adjudication process at the Tribunal, whereas most decisions denying or dismissing an appeal are made after a Tribunal Panel or Vice-Chair has made a final decision based on the merits of the substantive or procedural matters in the appeal. Because decisions denying or dismissing appeals finally dispose of an appeal, an application for reconsideration constitutes a party’s only remedy before the Tribunal if the party is dissatisfied with the result. On the other hand, a withdrawal decision usually puts the appellant in the same position as aclaimant who has never filed an appeal. No further proceedings are taken after the withdrawal is granted. No final decision on the substantive merits of the appeal is made and the file is closed. The appellant can usually re-file his/her appeal and, if necessary, apply for an extension of the time to appeal (because the re-filed appeal is subject to the time limits set out in section 125(2) of the WSIA). Decision No. 760/99F found that the wording of the “withdrawal with prejudice” decision that it was considering did not finally dispose of that appeal. It also recognized, however, that the “merits and justice” provision was broad enough that it could extend to consideration of procedural matters that might constitute abuse of process...

Section 131 of the WSIA gives the Tribunal the power to determine its own practice and procedure. This power is sufficiently broad to give Tribunal Panels and Vice-Chairs the power to adjourn hearings with conditions, and to finally dispose of appeals if those conditions are not met. Clearly, most procedural problems that arise in the course of hearing an appeal do not constitute abuse of process issues and would not be grounds for dismissing an appeal for lack of action. However, the Tribunal’s obligation to make decisions “based upon the merits and justice of a case” is sufficiently broad to extend to making final decisions based upon the merits and justice of procedural matters if thosematters are integral to the Tribunal’s ability to control its own process.

In our view, Decision No. 271/01 was a final disposition of the worker’s appeal. No withdrawal of the appeal was requested, and none was granted. Although it did not adjudicate the merits of the substantive issues of the worker’s appeal, it did adjudicate the merits and justice of procedural matters before dismissing the appeal. It dismissed the appeal because the time periods established by the original adjournment decision had not been adhered to. That original adjournment decision had accepted the worker’s representative’s request for a six-month time period for taking the required action (or advising the Tribunal that more time was required) and had clearly communicated both the time period and that the appeal may be dismissed for lack of action if the time period was not met or extended.

…

Both the original adjournment decision attaching these conditions, and the decision dismissing the appeal when these conditions were not met were an appropriate exercise of the Tribunal’s power to determine its own practice and procedure... They were decisions that were consistent with the statutory requirement to make decisions based upon the real merits and justice of the case


because that wording is sufficiently broad that it extends to considerations of procedural matters that are integral to the Tribunal’s ability to control its own process.

The Panel in Decision No. 271/01R2 also noted that:

…as indicated in Tribunal Decision No. 20/99, in cases where Tribunal decisions have terminated appeal proceedings because actions have not been taken within time periods specified by the Tribunal, the evidence that may persuade the Tribunal that it is “advisable to reconsider” may well differ from that which is required in deciding whether it is advisable to reconsider a decision that has adjudicated the merits of the substantive issues on appeal.

The Panel determined that Decision No. 271/01 should be re-opened on the facts of thatappeal because of new information that had come to light about the serious misconduct of the prior representative.

[48] In Decision No. 525/07 the Vice-Chair considered this law and the facts of that case, in which the worker had failed to attend at a Tribunal hearing, or to provide a reasonable explanation for that failure, or to provide reasons that satisfied the Panel that the appeal should be permitted to be rescheduled. The Vice-Chair found that it was not reasonable to proceed with the appellant’s appeal by written process based on the material before it. It did not consider it appropriate to place the appeal in inactive status or to allow the appellant to withdraw because of the potential impact of that approach on the employer’s as well as on the Tribunal’s resources. The Vice-Chair therefore dismissed the appeal. The Vice-Chair stated:

In my mind, the question is whether the appeal should be “deemed” withdrawn, orwhether it should be dismissed. If the appeal is treated as withdrawn the worker may make an application for an extension of time to re-file the appeal at some later date. This is in addition to the ability that all workers have to ask the Tribunal to reconsider an issued decision. If the appeal is dismissed, the only recourse available to the worker is to request reconsideration of this Decision. The Tribunal’s usual threshold test for granting a reconsideration would apply…

I find that the appeal is properly dismissed…In my view, all reasonable steps have already been taken to address whether the worker should be permitted to proceed with his appeal, as a matter of fairness. In my view, fairness does not require that the worker be entitled to any further process.

I consider the potential cost of future processes to the Tribunal and to the Respondent arelevant consideration. However, I do not consider the question of potential costs of anyparticular significance to the Tribunal in this situation. From the Tribunal’s point of view, the resources required for the different processes are not dissimilar. Both a time extensionapplication and a request for reconsideration require adjudicative resources. Both are usually addressed by written process. However, in my view, there is a distinction between these processes in how they affect the resources of Respondents. In the case of a request for reconsideration, the Tribunal has established a threshold test. The Vice-Chair or Panel does not request submissions from Respondents unless he or she considers that there is a prima facie case that the threshold test will be met. This is in order to avoid additional costs for Respondents when the matter has little chance of success. That is not the case with respect to an application for an extension of time. Because the application is, procedurally, a new matter, other parties are provided with the opportunity to make submissions in every case. A party might well be concerned that, if it did not make submissions, this might affect the outcome of the application.


[49] The Vice-Chair then referred to the facts of that case and concluded:

I consider that it would be an abuse of process to allow the worker further rights toproceed with the matter, on these facts.

Despite the reasoning of Decision No. 3/92, I also do not consider it a bar to mydetermination that section 16 of the WSIA provides that a worker may not agree with hisemployer to waive his right to claim compensation benefits. The worker has not entered into any agreement with his employer and has not waived his rights. I have dismissed his appeal for procedural reasons. That is an adjudicative action, and is in the same relationship to section 16 of the Act as any other adjudicative decision of the Tribunal.

Therefore, I adopt the analysis of Decision Nos. 760/99F and 271/01R2 that I havejurisdiction under section 131 to dismiss this appeal to avoid an abuse of process. I note that most of the decisions that articulated a narrow interpretation were considering the predecessor provision, section 90 of the pre-1997 Act. Whatever the case under that Act, I am satisfied that I have jurisdiction to dismiss the appeal under the WSIA. The WSIA introduced time limits for appeals. The statute therefore contains a provision that limits rights of appeal for procedural reasons that are not related to the substantive merits of the appeal. Therefore this procedural limitation is not inconsistent with the duty of the Tribunal, as otherwise set out in the legislation, to consider the appeal on the merits and the justice of the case. In my view, this provision reflects a legislative intent that appeals proceed in a timely manner and receive final adjudication. The different sections of the Act must be read together. Section 124(1), the merits and the justice provision, must be read together with section 125(2). Therefore it cannot be read to mean that appeals must always be considered on their substantive merits. In my view, the merits and justice of a case also extend to the procedural facts and to concerns about abuse of process.

I can find no good reason to defer this matter to a future Vice-Chair to be addressed in the context of a future application for an extension of time. The important facts about the worker’s failure to attend the hearing are known. A future Vice-Chair is not likely to be in a better position to adjudicate whether the matter should be allowed to proceed than I am now. I recognize that it is always possible for new facts to become known, due to the passage of time, that cannot be addressed now. For instance, it is always possible that important new medical evidence might come to light providing new insight into the worker’s medical condition in the time period that was subject to the ARO decision. In Decision No. 271/01R2, the Panel considered new facts about the conduct of a prior representative. However, if new facts were to become known, those facts may be appropriately addressed through the reconsideration process. That situation is not different from the case of any adjudicated appeal.

[50] We agree with this reasoning in this case.

[51] Our decision to dismiss the appeal of the G.O. estate is despite the fact that we have ordered the release of the draft Assessor Brief, and that the other seven appeals will proceed inany case, with or without the G.O. estate.

[52] We do not consider it reasonable in these circumstances for the G.O. estate to remain a party to the appeal. The estate and Mr. Christie have not responded to requests for submissions. The estate has indicated through Mr. Christie that it does not want to participate further. The estate has not consented to the release of the information of G.O. for the purposes of the provision of the Assessor Brief to the assessor(s) and has not provided any reasons for denying its consent. The estate and Mr. Christie have not responded to our request that it provide reasons for why it wishes to withdraw or that the estate confirm that it understands the implications of a withdrawal. The estate representative declined to discuss these matters with Tribunal counsel


when she was telephoned. This position of the estate has already added significantly to the delay already occasioned by other factors in the progression of the other seven batch appeals. In our view, it would not be reasonable to allow the G.O. estate to continue.

[53] We note the differences between the withdrawal of an appeal and the dismissal of an appeal discussed in Decision No. 525/07. When a party is permitted to withdraw, there is no disposition of the appeal. The party may appeal again. Given the time limits in the WSIA, the party would require an extension of time to appeal in order to proceed. However, the party would have the right to make an application for an extension of time in order to renew the appeal and to ask that the Tribunal adjudicate that application. This batch appeal has involved eight hearing days and over 120 Exhibits to date. Seven other batch appellants have ongoing appeals which have already been considerably delayed and who might find their appeals further delayed if a request were made by the G.O. estate to renew its appeal in the course of these proceedings. Those appellants might be required to commit further resources if they needed to respond to a future request of the G.O. estate for an extension of time. In this case, given the extent of the materials, considerable time might also be involved for a Tribunal Panel to consider a new application.

[54] In our view, a future Panel would not be in a better position than this Panel to determinewhether the G.O. estate should be permitted to proceed with its appeal in the future. In our view, the estate’s withdrawal is properly permitted only on the basis that the estate not be permitted to renew its appeal in the future. Therefore the appeal is dismissed. Any request to renew the appeal will require a request for reconsideration and will be subject to the Tribunal’s threshold test. We do not consider that there is any reasonable basis to permit a withdrawal on any other basis in this circumstance.

[55] The appeal of the G.O. estate is dismissed.


DISPOSITION

[56] The materials which identify G.O. in the draft Assessor Brief are to be anonymized.

[57] The draft Assessor Brief is to be provided to Mr. Dillon and Mr. Christie for submissions 15 days after the release of this decision. The materials are to be used for workplace insurance purposes only. Submissions on the draft Assessor Brief are to be provided within three weeks of the date that the draft Assessor Brief is sent to the parties.

[58] Once it has been finalized, and the names of the assessor(s) identified and the other necessary consents obtained, the Assessor Brief may also be released to the assessor(s) without further consent from the G.O. Estate.

[59] The appeal of the G.O. estate is dismissed. The G.O. estate is no longer a party to these proceedings.

DATED: November 23, 2011

SIGNED: E.J. Smith, M. Christie, F. Jackson

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