Focus On

WORKERS’ COMPENSATION - Appeals and judicial review - Natural justice - Procedural fairness - Boards and tribunals - Evidence - Disclosure and production

Wednesday, December 27, 2017 @ 8:17 AM  


Lexis Advance® Quicklaw®
Appeal by Baker from a ruling of the Workers’ Compensation Appeals Tribunal (Tribunal) regarding the Tribunal’s test for pre-hearing disclosure to the employer of the documents possessed by the Workers' Compensation Board (Board). The Tribunal determined that all documents possessed by the Board should be disclosed to the employer, regardless of relevance. At the time of the decision, the Tribunal’s Practice Manual provided that the employer should receive only the documents that were relevant to the issues. The Tribunal declined to follow its Manual on the basis that “relevance” was an unworkable standard that broke down in practice. In its decision, the Tribunal stated that the vetting process was time consuming and required too many administrative resources. The Tribunal noted there was no definition of relevance in the Workers’ Compensation Act (Act), Board Policy, or in the Tribunal’s Practice Manual to guide the vetting process. Consequently, it found there was potential for error, inconsistency and arbitrariness in the disclosure determinations. The Tribunal held the view that vetting before disclosure was inherently unfair to the employer and that disclosure based on relevance of the document infringed principles of procedural fairness. Despite the Tribunal’s acknowledgement that documents in the Board’s file for a worker might include highly confidential material which was irrelevant to the proceeding, the Tribunal ruled that everything in the Board’s file for a worker must be disclosed to the employer.

HELD: Appeal allowed. The Tribunal’s rejection of the relevance test for disclosure unreasonably interpreted both the principles of procedural fairness and the Tribunal’s procedural authority under s. 240(1) of the Act. There was no principle of procedural fairness that a litigant who requested disclosure was entitled to see every document it requested, regardless of relevance and without a relevance ruling by an impartial arbiter. The Tribunal’s ruling also found no support in the Civil Procedure Rules. Section 193(3)(b) of the Act entitled an employer to a copy of every document that the Board considered relevant to the appeal. This section contextually reflected the Legislature’s expectation that a fair hearing would follow disclosure of relevant documents with relevance determined by an impartial arbiter. The Act contemplated that disclosure of the worker’s information should accommodate the worker’s privacy subject to the employer’s right to fully participate in a fair hearing before the Board and Tribunal. This equilibrium was reflected in s. 193. Nothing in the Act as currently written suggested that the Legislature had rationed resources to infringe the worker’s privacy.

Baker v. Nova Scotia (Workers' Compensation Appeals Tribunal), [2017] N.S.J. No. 445, Nova Scotia Court of Appeal, J.E. Fichaud, L.L. Oland and P. Bryson JJ.A., November 28, 2017. Digest No. TLD-December252017004