CITATION: Chen v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 6287
DIV COURT FILE NO.:
WSIAT No. 17-0706
DATE: 20201016
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 endorsements of May 8, 2020 (2020 ONSC 2913) and July 6, 2020 (2020 ONSC 4170).
[2] WSIAT has served its Record of Proceedings, including transcripts. The applicants have issues with the Record, and particularly in respect to the transcripts.
[3] WSIAT shall upload the Record of Proceedings and the recordings from which the transcripts were made into the court’s Caselines database; assistance in doing this may be sought by court staff.
[4] WSIAT shall provide the applicants with copies of the recordings from which the transcripts were made. The applicants shall then prepare a list in three parts, each part containing three sections.
[5] The first part shall deal with every issue the applicants have with the Record of Proceedings other than the transcripts. This part shall be divided into two sections (which could be shown as columns):
(a) A list describing each problem.
(b) A list describing how they say that each problem should be fixed.
[6] The second part shall deal with issues the applicants have with the transcripts for mistakes that they say matter individually. By this I mean mistakes that, by themselves, could make a difference to the application. I have explained to the applicants that not every typographical error in a transcript matters to the underlying application. To prepare this list the applicants will have to listen to the recordings and compare them to the portions of the transcripts where they say there are problems. The applicants should then prepare a list in three columns that describes:
(a) What the transcript says;
(b) What the applicants say the transcript should say, based on what is on the tape;
(c) What the applicants say the transcript should say, based on what they say happened at the hearing, if this is something other than what can be heard on the tape.
[7] The third part of the list shall deal with any other errors in the transcript that the applicants wish to bring to the attention of the court, even though they are not individually important to the application. This part of the list should have the same three columns as the second part of the list, set out in the previous paragraph.
[8] The lists prepared by the applicants should be brief and should be restricted to the information I have described above.
[9] Once the applicants have served these lists on the respondents, the respondents are directed to respond to these lists within 14 days, advising:
(a) Which proposed changes they agree to;
(b) For any changes to which they do not agree, what they say should be done respecting the applicant’s concern.
[10] Once the applicants have considered the responses from the respondents, they shall prepare two lists:
(a) List of agreed changes (setting out the proposed changes on which the parties agree); and
(b) List of disputed changes (setting out their proposal and the response received from the respondents).
The applicants shall serve these lists – of agreed changes and disputed changes – on the respondents and shall send them to the court and ask for a further teleconference to settle the record.
[11] The court shall give further scheduling directions once the issues respecting the Record of proceedings has been finalized. The applicants have expressed concerns about delays in their application moving forward. They can reduce further delay by beginning work on their factum now, so that they will need less time to complete the factum once the Record of Proceedings has been finalized.
[12] On the issue of delay, while I appreciate that the applicants are frustrated, they must also understand that the case will take longer because they are self-represented, and they lack trust in the respondents. These are not criticisms – they are simply realities of this case. The original notice of application was not drafted properly, and there was delay for the court to sort this out with the parties. There are issues with the Record of Proceedings – not in itself an unusual thing – but the sort of issue that is usually sorted out between counsel without the need for the court to intervene. The court is available to assist the parties to navigate these problems – and further problems that may arise as the case moves forward – but there is inevitable delay if so much judicial time is required at different stages of the case. Judicial resources are limited, and the parties should expect that there will be delays as the matter moves forward if the court is required to manage the case so intensely.
[13] We had some difficulties during the teleconference call because Ms Chen was very upset. She was raising her voice and speaking quickly, and I had difficulty understanding her at times. Of course, it is essential that I understand what the parties are saying to me, and so I intervened, as I was required to do. Ms Chen may have understood that I was being critical of her or that I was faulting her for all of this – she sent the court a heartfelt note of apology afterwards, explaining that she finds the process stressful and it triggered her anxiety and frustration. All of this is understood. There was no need for an apology, and I want to reassure Ms Chen that the court understands that it can be difficult for self-represented parties to address these issues, of such deep personal importance to them, in the stressful environment of a court proceeding. Ms Chen should understand that my intervention was necessary so that I could understand what she was saying to me, and it was necessary to maintain the professional tone that is required for a court proceeding. It is part of my job to maintain order and decorum, and of course it is essential to my job that I understand what I am being told.
[14] This endorsement is effective from the time it is sent unsigned to the parties by email; a signed version will be provided in due course.
D.L. Corbett J.
Date: October 16, 2020