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Practice Directive

WCAT generally will not accept unsolicited post-hearing evidence or written submissions.

Alternatively, WCAT may accept unsolicited post-hearing evidence or written submissions if the party specifically requests and the panel agrees in advance. In deciding the request, the panel will consider why the evidence or written submission was not available earlier, its relevance to the appeal, and the impact of the delay on the statutory time frame for issuing the decision.

If the panel decides to accept the additional evidence or written submissions, WCAT may set a new decision due date (item 17.1.1). The panel will provide reasons for accepting or not accepting the late evidence or submission in its decision.

If a panel accepts additional evidence or written submissions, WCAT will disclose it to all participating parties who attended the oral hearing. The other parties will generally have an opportunity to respond. However, WCAT may disclose submissions that do not include new and relevant evidence for information purposes only.

Where a submission is transmitted to WCAT by fax, it is not necessary to send WCAT the original document. Where the party also sends the original document, WCAT will note the fax received date on the original document and destroy the fax.

14.7 New Evidence Obtained by the Panel

Practice Directive

Where the panel obtains further evidence or views relevant new evidence or information on the Board file that was placed there after the date of last disclosure or updated disclosure to the parties, the panel will disclose that evidence to the parties for comment.

The panel will decide the procedure and due dates to be set for obtaining comments on the new evidence or information. Normally the evidence will first be disclosed to the appellant and their representative. The new evidence together with the appellant’s response will then be disclosed to the respondent and their representative. The respondent’s submission will then be forwarded to the appellant for final response. Alternatively, the panel may disclose the new evidence to both parties and invite responses from both parties at the same time, and then give each party an opportunity to respond to the other.

Where a submission is sent to WCAT by fax, it is not necessary to send the original document. Where the party also sends the original document, WCAT will note the fax received date on the original document and destroy the fax.

15 CONFIDENTIALITY Section 260 provides:

260 (1) Members of the appeal tribunal and officers, employees and contractors of the appeal tribunal must not disclose any information obtained by them or of which they have been informed while performing their duties and functions under this Part, except as may be necessary to discharge their obligations under this Part.

(2) If information in a claim file or in any other material pertaining to the claim of an injured or a disabled worker is disclosed for purposes of this Part to a person other than the worker, that person must not disclose the information except as permitted in circumstances described in section 95 (1.1).

(3) Every person who violates subsections (1) or (2) commits an offence. Section 95(1.1) provides:

95 (1.1) If information in a claim file, or in any other material pertaining to the claim of an injured or disabled worker, is disclosed for the purposes of the [WCA] by an officer or employee of the board to a person other than the worker, that person must not disclose the information except

(a) if anyone whom the information is about has identified the information and consented, in the manner required by the board, to its disclosure, (b) in compliance with an enactment of British Columbia or Canada,

(c) in compliance with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information, or

(d) for the purpose of preparing a submission or argument for a proceeding under this Part or Part 3.

WCAT members must not, except in the proper performance of their duties, disclose any information obtained as a member [s. 30 ATA]. Members must not be required to give evidence in any proceeding, other than a criminal proceeding, about records or information obtained in the discharge of their duties under the WCA or the ATA [s. 55 ATA].

Members, officers, employees, and contractors of WCAT who cease to hold office, or who cease to be employees or contractors, continue to be bound by the obligations of confidentiality in respect of any matter arising while they were a member, officer, employee, or contractor of WCAT (item 21.2).

15.1 Freedom of Information and Protection of Privacy Act (FIPPA)

The FIPPA prohibits a public body from using personal information in its custody and control other than for the performance of that body’s statutory duties [ss. 32 and 34, FIPPA]. This means that WCAT members and support staff are prohibited from accessing or using personal information except as required in the performance of their work duties.

Under FIPPA, an applicant may apply in writing to a public body for access to any record within the custody and control of that body. WCAT is a public body within the meaning of FIPPA.

WCAT is obliged by sections 6 and 7 of FIPPA to respond to requests within 30 days and to make every effort to respond openly, accurately, and completely. If access is denied, WCAT’s response will include reasons for the refusal and explain the applicant’s right to request a review of the decision by the Information and Privacy Commissioner.

Section 66 provides that the head of a public body may delegate any person to carry out their duties under FIPPA. Tribunal counsel has the delegated authority to respond to applications. Inquiries regarding disclosure under FIPPA should be directed to tribunal counsel.

Section 20 of FIPPA provides that a public body need not disclose information which is to be published or released to the public within 60 days. As WCAT decisions are publicly accessible on the internet within 60 days, WCAT will refer persons with inquiries concerning WCAT decisions to the internet site.

15.1.1 Freedom of Information and Protection of Privacy Act (FIPPA) and

WCAT Proceedings (Item 13.3)

Once a panel issues a decision on an appeal, WCAT forwards all new documentation and correspondence pertaining to the appeal, including evidence and submissions, to the Board to be placed on the Board’s file. The only exception is section 257 applications for certifications to a court (item 18.7). WCAT also maintains an electronic case management system which is an electronic record of appeal activity. All that WCAT keeps as a permanent record after the decision is issued is an electronic copy of the decision itself and the electronic record of appeal activity.

Certain categories of records are exempt from disclosure because they do not fall within the scope of FIPPA or FIPPA does not apply [s. 61 ATA]. These include:

a) personal notes, communications, or draft decisions of a decision maker;

b) personal information, the disclosure of which would be an unreasonable invasion of a third party’s personal privacy;

d) information that is subject to solicitor client privilege;

e) information relating to the exercise of the Ombudsman’s function;

f) notes or records kept by a person appointed to conduct a dispute resolution process;

g) any information WCAT receives in an oral hearing from which the public, a party, or participating person/representative group was excluded;

h) a transcription or audio recording of a proceeding; i) a WCAT decision which is publicly accessible.