Hearing Tips

 

Differences between WSIB and WSIAT hearings

These tips apply to oral hearings at both the Workplace Safety and Insurance Board (WSIB) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT), unless otherwise noted.  An Appeals Resolution Officer (ARO) decides your case at the WSIB. A Vice-Chair or a three-person panel decides your case at the WSIAT.  You may request a panel consisting of a Vice-Chair, a person from the employer community, and a person from the worker community if, for example, your case involves new or significant medical or legal issues or significant credibility findings.  For more information about how to arrive at the hearing stage, see Appeals at the WSIB and Appeals at the WSIAT. 

 

Setting a hearing date

At the WSIB level, many appeals are decided after a hearing in writing and without an oral hearing.  Generally, an oral hearing only occurs in cases where it is important for the ARO to hear from a witness or witnesses in order to decide the issue under appeal.  If you want to have an oral hearing, you must ask for it on your Appeal Readiness Form and you must list the reasons why a hearing is necessary.  The WSIB will choose whether you will have a hearing in writing or an oral hearing.  For more information on requesting an oral hearing, see Appeals at the WSIB 

If you are granted an oral hearing, a WSIB Hearings Scheduler will contact you to set the hearing date. Hearings are generally scheduled within 90 days after the WSIB agrees your case will have an oral hearing.  Please ensure that you and all your witnesses are available before you confirm the hearing date, since it is difficult to change the date at a later time.  If you have requested an interpreter for the WSIB hearing, you should ask the Hearings Scheduler to confirm that arrangements for an appropriate interpreter will be made.  

At the WSIAT level, you will receive a letter with a proposed hearing date.  If required, you must request a hearing date change within two weeks of the date of the WSIAT letter.  If you do not call the scheduler within two weeks, a hearing date change will not be permitted except for a very good reason.  If you have requested an interpreter, your Notice of Hearing will state that the WSIAT is providing an interpreter.  If it does not, remind the scheduler of your need for an interpreter. 

 

Is going to a hearing like going to court?

The rules at a hearing are simpler and less formal than the rules in court.  You have basic rights at a hearing as you would in court. These rights are:  to attend the hearing, to have a representative, to bring witnesses, to present relevant evidence, and to question your employer and/or its witnesses if they attend the hearing.  Your employer has the same rights. 

 

Will my hearing expenses be paid?

Some costs, such as travel and related expenses, will be covered by the WSIB or the WSIAT if the hearing is held outside your own community. Travel expenses are only paid within the Province of Ontario.  If you or your witnesses take time off work to attend a hearing, then the WSIB or the WSIAT will pay a limited amount.  Please note that the WSIB or the WSIAT will not pay for the cost of your representative. 

 

What should I do if there is an interpreter at my hearing?

You should speak with the interpreter before the hearing to ensure you understand each other. If you do not understand each other, then you will not be able to communicate effectively at the hearing. You may need to request an adjournment (a rescheduling of the hearing to a later date) so that the right interpreter can be found. 

 

Can I provide additional evidence before the hearing?

At the WSIB level, all evidence should be sent to the WSIB before you file an Appeal Readiness Form.  When you file the Appeal Readiness Form, you are telling the WSIB that you are ready to go ahead with your appeal.  To submit additional evidence at a later time, you would have to show that the evidence could not have been sent at the time the Appeal Readiness Form was completed.  If you have new evidence, send it to the WSIB as soon as possible. 

At the WSIAT level, any additional evidence must be provided at least three weeks in advance of the hearing date.  You must also provide the additional evidence to any other party (usually the employer) attending the hearing.  If the evidence is not new, the WSIAT will want to know why it was not sent with the Confirmation of Appeal (COA) form.  See Appeals at the WSIAT for more information.   

If you do not provide the evidence within the time limits established above, you will need to bring it with you to the hearing. 

 

Providing additional evidence at the hearing

You must bring enough copies for yourself, the decision maker(s), and any other party.  You must explain why you were not able to provide the information prior to the hearing, and you need to convince the ARO or Vice-Chair/panel that the evidence is relevant and important enough to be accepted at this late time.  There are strict rules about submitting evidence ahead of time, partly to ensure there are no surprises at the hearing.  The decision-maker may decide:  to disallow your use of the late evidence; to let you use it, but adjourn the hearing to provide the other party with a chance to review and respond to the new evidence; or to let you use the late evidence and proceed with the hearing as scheduled.

 

The structure of the hearing

Hearings usually follow the same basic format. A sound recording is made to serve as a record of the hearing. Before turning on the recorder (or going “on record”), the decision-maker will note who is present. Generally, any witnesses will be asked to leave at this point until their testimony is required. The decision-maker will formally begin the hearing. 

Hearings usually follow these steps: 

  • The ARO or Vice-Chair will request that all parties identify themselves for the record.

  • The ARO or Vice-Chair will state the decision and issue under appeal.

  • You should raise any preliminary matters, such as requests for adjournments or requests to submit additional evidence at this time. (Adjournments are only granted in exceptional circumstances.)

  • Both parties will have a chance to make an opening statement, identifying what the case is about and outlining the important facts that will be established, including what outcome or benefits are expected. (This is not the time to argue your case.)

  • You will be sworn in, which means you promise to tell the truth.

  • You will provide your evidence, the employer or its representative will cross-question you, and the decision-makers will ask you any questions they may have.

  • If you feel you need to add anything to clarify your answers, you can do so at this point.

  • You will then have an opportunity to call any witnesses and follow the same procedure.

  • The employer will then have an opportunity to present its witnesses in the same way.

  • Finally, the parties will get a chance to make closing submissions. 

It usually takes a day or less to complete the hearing process.  If your case is very complicated, you may need to return for another day or more.  You may be asked to collect additional evidence after the hearing and forward it to the decision-maker by mail, along with any written submissions you wish to make. 

 

When will I get a decision?

A written decision will be sent to you in the mail several months after the hearing. 

 

Oral hearing dos and don’ts 

Do

  • be clear, precise, and answer only the question asked.

  • be familiar with the file, how it is organized, and where relevant documents supporting your arguments are located.

  • stick to the point.

  • identify the evidence, policy, and law supporting your argument.

  • treat all parties with respect; be firm when necessary, but always be polite.

  • be honest, relaxed, and think before you speak, especially if something causes you anger or upset.

  • feel free to stand up and stretch if you need to, but first let everyone know what you are going to do.

  • ask for an explanation if you do not understand a question or statement. 

Don’t

  • ignore gaps in your evidence or weaknesses in your case that you need to explain.

  • make your submission too long.

  • guess—if you do not know the answer to a question, just say so.

  • exaggerate, as this can damage your credibility and take away from the truth of your story.  

 

February 2013

IMPORTANT INFORMATION

This publication contains general information only. It is not legal advice about a particular situation and is not intended to replace advice from a qualified representative. This publication was last updated on the revision date listed above.