CITATION: Chen v. Workplace Safety and Insurance Appeals Tribunal, 2021 ONSC 567

COURT FILE NO.: 213/20

DATE: 20210122

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Chen v. Workplace Safety and Insurance Appeals Tribunal

BEFORE: D.L. Corbett J.

COUNSEL: The Applicants, self-represented

Heindrick Nieuwland, for the Employer TEVA

Michelle Alton, for the WSIAT

ENDORSEMENT (IN CHAMBERS)

[1] This endorsement sets out decisions and directions provided during a case management teleconference on January 14, 2021.

[2] By endorsement dated October 16, 2020, I set out a process by which the court would try to settle issues respecting the transcripts and other issues concerning the record in this case (2020 ONSC 6287) (the "Prior Direction").

[3] Pursuant to paragraph 10 of the Prior Direction, the applicants have provided a list of agreed changes to the transcript. All parties agreed during the teleconference that these changes have been agreed. There was some discussion about four of these changes [p.1630, line 21, p.1702, line 15, p.2008, line 22, and p.1594, line 9]. It emerged that the applicants accepted comments from a respondent in respect to these items, and that the version set out on the list is accepted by all parties as correct. A copy of the list of agreed changes shall be attached to this endorsement. It is ordered that these changes, as shown on the list, are deemed to be made to the transcripts. It is not necessary for the parties to have the transcripts corrected: the transcripts, as uploaded to CaseLines, shall be deemed to include the changes on the list by virtue of this endorsement.

[4] The applicants note that there was a long silence before an answer in the transcript and that this silence is not shown on the transcript. This is found at p.1787, line 11. It is agreed that the silence between question and answer at this place in the transcript was 34 seconds. This shall be considered as a fact for the purpose of this proceeding.

[5] The applicants take the position that in several places there was evidence given that is not reflected on the recordings of the proceedings (for example, at pages 1641-42, 2028, 1943 and 1944) the applicants say that certain things were said that are not on the recording). The issue, at this stage, is settling an accurate transcript of what was recorded. The transcripts may not be supplemented on the basis of a party's memory of what was said, if that memory is not reflected on the recording. No change shall be made to the transcripts on this basis.

[6] The applicants take the position that there were defects in the interpretation provided by the Mandarin interpreter at the hearing (at pages 2123-2128). The transcript only shows what was said at the hearing in English. That is the evidence that was before the WSIAT. Any objection to the translation provided by the Mandarin interpreter cannot be pursued as a proposed change to the transcript.

[7] The applicants ask that their written closing statement be included as part of the record. This document was provided to the WSIAT but was not marked as part of the record. It is ordered that the applicants may upload a copy of their written closing arguments as part of the record of what was before the WSIAT.

[8] The applicants ask that a compendium of documents used by TEVA to examine witnesses before the WSIAT, but which was not marked as part of the record before WSIAT, be included as part of the record. Counsel for TEVA agrees that such a compendium was used and is still available in his file. He notes that the documents in the compendium were made part of the record but agrees that the compendium itself was not marked as part of the record. It is directed that TEVA upload a copy of this compendium to CaseLines and that it be considered as part of the record before WSIAT.

[9] The applicants have served Requests to Admit. The respondents have refused to admit any of the facts set out in the Request to Admit. The Request to Admit and the responses to the Request to Admit shall be uploaded to CaseLines but shall only be considered and referred to in respect to the issue of costs of this proceeding and shall not be referred to for the purposes of arguments on the merits. In so directing, this court does not decide, one way or the other, whether the Request to Admit or any part of it was proper.

[10] The applicants' requests for the following changes to the record are denied:

(a) Page 1153: the applicants ask that a photograph be removed from the record because it does not accurately show what it is said to show. This photograph was before the WSIAT and is properly included in the record before this court. Issues of what should be taken from this photograph are questions of fact that were before the WSIAT.

(b) Pages 72, 74, 77 and 79: WSIAT's records reflecting persons who attended at the hearings shall remain part of the record. The court does not understand why the accuracy of these records is material to any issue before this court. However, if this is material, it cannot be addressed on preliminary motion and is a matter for the panel to determine on the basis of WSIAT's record and any other material placed before the panel on this point.

(c) Page 1585, line 3, page 1588, line 25, page 1591, line 22, page 1594, lines 4, 7 and 8, page 1595, line 2: the transcript is correct. The applicants say that what was said, shown on the transcript, was in error. That is not a basis to change the transcript. Further, it does not appear that the error is material to the proceeding (the correct name for a document referenced by a witness or by counsel).

(d) Page 1789: the certification shall not be changed.

(e) Page 1721, line 21 and page 1869: any disagreement over what was said at these portions of the transcript may be raised with the panel but should not be raised unless it is material to the issues before the panel.

[11] These directions settle all disputes respecting the record. All that remains is for the parties to exchange their factums and then to argue the case on the merits.

[12] The applicants shall serve their factum by February 12, 2021.

[13] The respondents shall serve their factums by March 12, 2021.

[14] The parties shall upload all of their materials (including costs materials for costs of this proceeding) to CaseLines by March 17, 2021.

[15] The parties shall obtain a date for argument of this case before a panel of three judges of the Divisional Court by ZOOM videoconference, for an estimated 1.0 day, on a date no earlier than April 5, 2021. The parties shall report back to this court by February 12, 2021, by email, with the date they have obtained for the hearing.

[16] The applicants shall have a maximum of 2.5 hours for their oral arguments before the panel. This is considerably more time than I would allot the applicants if they were represented by counsel. The respondents shall have 2.0 hours between them, and they should agree upon their respective time allotment in advance of the hearing.

[17] The applicants advised that they thought they might have difficulty complying with the page limit for factums (30 pages). As I explained to them, it is expected that factums will meet this limit in all but the most complicated of cases, and it is rare for the court to dispense with this page limit. I also explained to them that a tight and focused argument is the most effective way to argue a case in Divisional Court, and that generally, a longer factum is not a better factum. I directed the applicants to do their best to bring their factum within the page limits. If, after they have completed their factum, they find they are still outside the page limit, they may write to the court by email, attaching a copy of the completed factum, requesting permission to upload it.

[18] This order is effective from the date it is sent to the applicants by email. A signed version of the endorsement shall be provided to the parties in due course.

"D.L. Corbett J."

Date: January 22, 2021