Court File and Parties

CITATION: Chen v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 4170

DIV COURT FILE NO.: TBA

WSIAT No. 17-0706

DATE: 20200702

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Chen v. Workplace Safety and Insurance Appeals Tribunal

BEFORE: D.L. Corbett J.

COUNSEL: Cathy Chen, self-represented Applicant for the Applicants Heindrick Nieuwland, for the Employer TEVA Michelle Alton and Rosemary Basa, for the WSIAT

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement follows the court’s endorsement of May 8, 2020 (2020 ONSC 2913) and a case management conference held on July 2, 2020.

[2] The court has received a copy of the applicants’ amended notice of application dated May 20, 2020. The applicants continue to be self-represented and their notice of application still reflects that they do not have the knowledge and training of a lawyer. However, I am satisfied that the notice of application identifies the issues that the applicants wish to raise with the process and decision below, and that the manner in which these issues are described in the notice of application does not unduly complicate the application. I conclude that it is not necessary to strike portions of the notice of application or to require further amendment of it for the application to proceed fairly on the merits.

[3] Respondents raise concerns about the tenability of some of the points raised in the notice of application. I say nothing about those points here other than that the presence of these points in the notice of application will not unduly complicate the record or argument before the court, and I am satisfied that respondents can adequately address these points in their written argument.

[4] The parties agree that transcripts need not be prepared for the appearance on November 1, 2018: no oral evidence was given that day. The parties have agreed that the hearing transcripts will be included in the Record of Proceedings, which will be provided by WSIAT as described below.

[5] The applicants seek a copy of a video recording of the hearing at WSIAT. During discussion it was explained to the court that the applicants sought accommodation during the hearing that was provided by WSIAT by way of a streamed video of proceedings, enabling applicants to view and participate in proceedings from another room. Counsel advised that this streaming was not recorded – that is, no video copy of the proceedings was kept. Therefore there is no video recording that can be produced to the applicants. The court explained to the applicants that administrative proceedings, such as the hearing before WSIAT, are not normally captured by video recording. On the basis of this information the applicants indicated that they understood that a video recording of the hearing would not be provided to them.

[6] The applicants have asked for a video recording of events said to have taken place at the applicant’s workplace. WSIAT concluded that there is no such recording. The applicants apparently do not accept this finding. They may challenge the finding as part of the application.

[7] The applicants have also asked that the evidence of a person who did not give evidence at WSIAT be elicited at this application. A motion for fresh evidence would be required for additional evidence to be filed before this court, and that evidence would ordinarily be in writing, not in the form of oral testimony. I explained to the applicants that this is not a court of first instance – our task is to review what happened before WSIAT, not to conduct our own hearing into the matter. If the applicants wish to do so, they may raise an issue about the fact that the witness they have identified did not give evidence at the WSIAT hearing. They should not expect, however, that this person will be permitted to testify at the hearing before this court.

[8] WSIAT agrees to compile and serve the Record of Proceedings. This shall be done in pdf and/or Word formats, depending on the nature of the document(s) being filed. If there are any issues respecting the Record, they shall be raised with the court by way of email within twenty-one days of service of the Record of Proceedings.

[9] The applicants expressed concern about representing themselves in this matter. Divisional Court staff are requested to provide the applicants with information on how the applicants may contact Pro Bono Ontario for a consultation. It is also open to the applicants to hire counsel for this application, if they wish to do so. This is not the sort of case in which the court would appoint counsel for the applicants at public expense: while the court has the discretion to make such an order, it is done very rarely, on notice to the Attorney General, and it does not appear that the circumstances that could justify such an order are present in this case.

[10] The parties should schedule a further case management conference to confirm a schedule to complete the exchange of materials and to bring this case before a panel of the court for hearing. This case management conference should be scheduled for some time after delivery of the Record of proceedings by WSIAT. The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.

D.L. Corbett J.

Date: July 6, 2020