Sections 10 and 11 of the Evidence Act set out the court rules for admitting expert evidence. Section 10(2) provides that sections 10 and 11 do not apply where a tribunal makes its own rules for the introduction of expert evidence and the testimony of experts. WCAT has made its own practice directive for the introduction of expert evidence and the testimony of experts [ss. 234 and 246.1 WCA, and s. 11 ATA]. Where there is a conflict between WCAT’s practice directives and sections 10 or 11 of the Evidence Act, the WCAT practice directives apply. (See item 16.1.3.1 for WCAT’s practice regarding reimbursement of the expenses of expert reports. See item 14.1.4 for deadlines regarding submitting expert opinions to WCAT.)
The following practice directive applies to expert evidence where an oral hearing is being held. The same principles apply generally to expert evidence where no oral hearing is being held. In particular, rules (a) to (d) apply to a matter being considered by written submissions, subject to WCAT’s procedures regarding time frames for filing evidence and submissions and giving notice to other parties (items 13.1 to 13.1.2).
Practice Directive for Expert Evidence (see items 16.1.3 to 16.1.3.2):
a) Expert opinion evidence will only be accepted from a person the panel finds to be qualified by education, training, or experience as an expert in the field or discipline in which they are giving their opinion. In giving evidence to the tribunal, an expert has a duty to assist the tribunal and is not to be an advocate for any party.
b) The qualifications of the expert should be stated in writing with the expert’s report. Such a statement of qualifications will generally be accepted as evidence of those qualifications. A job title (such as Board medical advisor, or vocational
rehabilitation consultant) or professional designation will generally be accepted as evidence of the person’s qualifications to hold the position described by the job title. However, it does not determine the level of expertise of that person in relation to specialized disciplines.
c) Objections to a person’s qualifications as an expert will not generally cause a panel to exclude that evidence, but may affect the weight given to the evidence. d) Written reports prepared by an expert are admissible without the need for the
expert to attend an oral hearing. Generally, an expert’s oral evidence may not be admissible in an oral hearing unless their written report was provided to WCAT at least 21 days prior to the hearing. The correspondence requesting the expert’s written report must also be submitted.
(See items 16.1.3.1 to 16.1.3.1.1 for provisions regarding reimbursement of the expense of obtaining expert evidence.)
e) Where an oral hearing is held, the parties should provide written reports to WCAT promptly after receiving them so that they may be disclosed to all participants. WCAT must receive any expert’s report at least 21 days prior to an oral hearing. f) If a party does not provide an expert’s report to WCAT 21 days before the
hearing, the party must provide written or oral reasons why the expert’s report was not submitted at least 21 days prior to an oral hearing. A party may also be asked to produce any supporting documentation.
i) An example of an acceptable reason for a late report might be that the representative requested a medical opinion many weeks before the oral hearing, and although the opinion is dated four weeks before the hearing, the expert did not provide it to the representative until the day before the hearing.
ii) An example of an unacceptable reason might be that the representative had the report several weeks before the hearing, but due to late preparation, did not provide it to WCAT until the day before the hearing. g) Panels have the discretion to receive a late expert’s report at or before an oral
hearing, in which case the panel will determine what steps are necessary to ensure the other participating party is given an adequate opportunity to respond. In deciding whether to receive the report, the panel will consider the reasons for the failure to submit the report at least 21 days in advance of the hearing. Where the other participating party would be prejudiced by not having had enough time to respond to the new expert evidence, the panel may:
i) allow time after the oral hearing for submission of a response; ii) postpone the oral hearing; or,
iii) provide any other relief the panel considers appropriate.
h) WCAT may require an expert to attend an oral hearing if the panel believes the attendance is necessary for a fair hearing of the issues or failure to do so would prejudice a party to the proceeding.
11.7 Orders (Subpoenas) for the Production of Existing Evidence and Attendance of Witnesses
At WCAT, an order is what is otherwise known as a subpoena.
Section 247(1) provides that, at any time before or during a hearing, WCAT may order a person:
a) to attend an oral or electronic hearing to give admissible, relevant evidence on oath or affirmation or in any other manner that is admissible and relevant to an issue in an appeal, or
b) to produce an admissible, relevant document or other thing in a person’s possession or control.
Panels may issue an order under section 247(1) on their own initiative, or at the request of a party.
A written notice of oral hearing is an order to the appellant to appear at the time and place stipulated. [s.14(c) ATA] (Rule 14.2.3)
Practice Directive
A party to an appeal may request an order where a person has or can provide evidence relevant to the matters under appeal and they are not willing or able to provide that evidence voluntarily. This may, for example, include persons who require an order for their employers to give them the time off from work. It may also include experts who have provided a written opinion on which a party wishes to cross-examine them. It does not include Board decision makers but may include Board officers who provide expert evidence, such as vocational rehabilitation consultants, field investigators and medical advisors.
Together with their request for an order under section 247(1), parties must provide WCAT with the following information in writing:
a) the name and address, and work location (if applicable) of the witness or person in possession of the documents or things;
b) the exact documents or class of documents or things requested;
c) the relevance of the evidence to the issue under appeal, that is
i) how it relates to the issue under appeal, and
ii) how it is necessary for WCAT to address the issue under appeal and make a decision in the appeal;
d) whether the witness is willing to attend voluntarily, or the person is willing to produce the documents or things voluntarily and, if not, why not; and,
e) whether there is another way of testing the evidence.
If full and correct information is not provided, WCAT will generally not issue an order. Where an oral hearing is scheduled, the request for an order must be made at least
21 days in advance. Where there is no oral hearing, the request for an order must be made at least 21 days before the party’s written submission is due. Otherwise, WCAT is under no obligation to consider the request in advance. The party may later repeat a request for an order to the panel.
In deciding whether to issue an order under section 247(1), WCAT will consider whether there are other means for obtaining the same evidence, the relevance of the evidence and, if applicable, the reason for the unwillingness of the person to attend or provide evidence, voluntarily.
The panel will sign an order under section 247(1) in a form approved by WCAT (see Appendix 7 as modified from time to time). A person served with an order compelling their attendance at a hearing is entitled to conduct money payable at the time of service (Supreme Court Civil Rule 12-5(35)). A witness is not obligated to attend if the conduct money is not paid. A person served with an order compelling the production of documents is entitled to payment of the reasonable costs of copying and delivering the documents, payable in advance.
WCAT will be responsible for service and payment of conduct money and/or the costs of production of documents.
11.7.1 Depositions
WCAT may order depositions of witnesses (in or out of province) in accordance with the Supreme Court Civil Rules [s. 247(2)].
11.7.2 Non-Participating Party
A party may ask the panel to issue an order compelling the attendance of another party who is not participating in the hearing. Where the employer is a limited company, an officer or employee of the company may be required to give evidence on behalf of the company.
11.7.3 Failure to Comply
If a person fails to comply with an order issued under section 247(1), WCAT may apply to the Supreme Court for an order directing compliance [s. 247(1.1)]. The panel may adjourn the hearing to allow for this. If a person summoned as a witness fails to attend a hearing, take an oath or affirmation, answer questions or produce the records or things in their possession, WCAT may apply to court for committal of that person for contempt [s. 49(1) ATA].
11.7.4 Freedom of Information and Protection of Privacy Act (FIPPA)
Section 3(2) of FIPPA states that it "does not limit the information available by law to a party to a proceeding." This means that, in WCAT appeal proceedings, FIPPA does not
to obtain documents, the panel will determine the relevance of the information in the documents to the appeal. If the panel finds it necessary, the panel may sever irrelevant information in the copies of the documents before disclosing them to the parties to the appeal.