WCAT Decision Number:
A1900897 (May 26, 2022)
[59]
Subsection 235(2) may provide some context as to the intended meaning of subsection 235(1).
That subsection prohibits a court, tribunal, or other body from admitting into evidence
information disclosed contrary to subsection 235(1). In my view, the narrow interpretation of
paragraph 235(1)(c) would have the absurd result that WCAT could not admit into evidence
information from the worker’s claim file that has been properly disclosed to the worker, the
employer, and to WCAT (and thus previously admitted), simply because the employer had
disclosed the information to an expert for the purpose of obtaining an expert opinion for the
purpose of the appeal, contrary to section 235(1). In the case at hand, that would mean the
entire claim file plus Dr. Blasberg’s records, all of which were disclosed by the employer to
Dr. Gosse, would not be admissible in the appeal, even if the evidence was in the worker’s
favour. Application of section 235(2) is not limited to tribunals other than WCAT. Section 235(2)
can be understood to preclude a court or a tribunal other than WCAT from admitting into
evidence information disclosed contrary to section 235(1). Thus, if “submission” in
section 235(1) is interpreted to include obtaining expert evidence for use in the appeal the
seemingly absurd result described above would be avoided without rendering section 235(2)
meaningless.
[60]
[61]
Broadly speaking, the scheme and purpose of the Act is to provide secure, no fault
compensation to injured workers, and collective liability to employers (Pasiechnyk v.
Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890). Neither a narrow
interpretation of paragraph 235(1)(c), which would exclude disclosure of information in order to
obtain expert evidence, nor a broad interpretation, which would include such disclosure, is
obviously disharmonious with the broad scheme and purpose of the Act.
The reference in paragraph 235(1)(c) to Part 7 of the Act (Appeals to the Appeal Tribunal)
invites consideration of the purpose of Part 7, which can to be taken to include adjudication in
accordance with the Act and policy, and compliance with the principles of natural justice as per
the reference to the merits and justice of the case in subsection 303(2) of the Act. In my view,
the principles of procedural fairness support a broad interpretation of paragraph 235(1)(c)
because an employer ought not be precluded from obtaining relevant expert evidence.
A counterargument is that if expert medical evidence is needed, an employer could ask for the
worker’s consent to disclose pursuant to paragraph 235(1)(d) and, if the worker declined
consent, could ask WCAT to obtain an opinion from an independent health professional. On
balance, I conclude that a procedural fairness argument provides some support for a broad
interpretation of paragraph 235(1(c).
[62]
Where the meaning of statutory provisions is unclear, it is appropriate to consider legislative
history and debate. Prior to the revision of the Act effective April 6, 2020, subsection 235(1) was
subsection 95(1.1). Subsection 95(1.1) was added to the Act in 1995 by the Miscellaneous
Statutes Amendment Act (No. 2), 1995. Before then, there was no specific reference to
subsequent disclosure of information disclosed to a person other than the worker. The
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