A-3.001, r. 12 - Regulation respecting evidence and procedure of the Commission des lésions professionnelles

Full text
chapter A-3.001, r. 12
Regulation respecting evidence and procedure of the Commission des lésions professionnelles
COMMISSION DES LÉSIONS PROFESSIONNELLES — RULES OF EVIDENCE
Act respecting industrial accidents and occupational diseases
(chapter A-3.001, s. 429.21)
A-3.001
September 1 2012
Implicitly replaced, O.C. 385-2017; 2017 G.O. 2, 980; see chapter T-15.1, r. 1.1.
O.C. 217-2000; O.C. 618-2007, s. 1; I.N. 2017-05-01.
DIVISION I
SCOPE AND PURPOSE
1. This Regulation applies to the proceedings on which the Commission des lésions professionnelles makes determinations under section 369 of the Act respecting industrial accidents and occupational diseases (chapter A-3.001).
Its purpose is to ensure the simple, flexible and rapid processing of applications, particularly by encouraging cooperation by the parties and their representatives and by the use of new information and communication technologies, in accordance with the rules of natural justice and the equality of parties before the board.
O.C. 217-2000, 1.
2. The board is not bound to apply the rules of civil evidence and procedure.
O.C. 217-2000, s. 2.
DIVISION II
APPLICATION
3. In addition to the information required by section 429.23 of the Act, the application instituting the proceeding shall contain the following:
(1)  the name and address of the applicant, his telephone number and, where applicable, his electronic mail address and his fax number;
(2)  if the applicant is represented, the representative’s name and address, his telephone number and, where applicable, his electronic mail address and his fax number;
(3)  the names and addresses of the other parties to the application, their telephone numbers and, where applicable, their electronic mail addresses and fax numbers;
(3.1)  if the applicant contests a decision that does not recognize the existence of an occupational disease, the applicant must communicate to the board the names of the employers for whom the work of a nature to induce the disease was carried on; and
(4)  any other necessary information that the board may require.
Unless the application instituting the proceeding is sent to the board using an information technology medium, the applicant must send a copy of the contested decision.
O.C. 217-2000, s. 3; O.C. 618-2007, s. 2.
4. Any change in the contact information of a party or his representative shall be communicated to the board.
O.C. 217-2000, s. 4; O.C. 618-2007, s. 3.
5. Every application other than an application to institute proceedings must specify the case file number assigned by the board to each case to which the application refers.
O.C. 217-2000, s. 5; O.C. 618-2007, s. 4.
6. A party who wishes to discontinue the application must send the board a notice that clearly reflects that choice. The notice must be signed by the party or the party’s representative.
A party may also do so orally at the hearing.
O.C. 217-2000, s. 6; O.C. 618-2007, s. 5.
7. An income and expenditures’ form shall be forwarded to a party who, for a financial reason, applies for the issuance of an order to suspend provided for in section 380 of the Act.
The application shall be processed upon receipt of the required information.
O.C. 217-2000, s. 7.
DIVISION III
REPRESENTATION
8. A person who accepts to represent a party after the case is opened shall send the board a notice in which that person declares to be authorized to act for that purpose and identifies each contested case for which that person is authorized to act. The board shall consider that the authorization to act is valid for all the stages of the case.
If the authorization to act is revoked before a case is closed, the party or the party’s representative must send the board a notice to that effect.
O.C. 217-2000, s. 8; O.C. 618-2007, s. 6.
DIVISION IV
COMMUNICATION OF PROCEDURES AND EVIDENCE
O.C. 217-2000, Div. IV; O.C. 618-2007, s. 7.
9. The board must communicate to the party the proceedings, evidence, notices and other information related to the progress of the case. If a party is represented, the communications must be sent to the representative.
However, even if the party is represented, the party must receive communication of the proceedings that have an impact on the continuation or closure of the record of the contestation or on the hearing, as well as the decision.
O.C. 217-2000, s. 9; O.C. 618-2007, s. 8.
10. A party wishing to file evidence in the record shall send it to the board as soon as possible so that the board may reproduce it and send it to the other parties before the hearing.
O.C. 217-2000, s. 10; O.C. 618-2007, s. 9.
11. If the board encounters technical difficulties reproducing a piece of evidence, the board may require the party who filed the evidence to reproduce it and to send it to the other parties within the time and on the conditions determined by the board.
O.C. 217-2000, s. 11; O.C. 618-2007, s. 10.
11.1. If evidence filed in the record by a party may not be communicated to the other parties by the board, because of the nature or characteristics of the evidence, the board must inform the parties that the evidence has been filed and that it may be examined at the office of the board where it was filed.
O.C. 618-2007, s. 11.
11.2. A writing filed in the record less than 15 days before the date of the hearing must be filed in 5 copies. It must also have been communicated to the other parties.
O.C. 618-2007, s. 11.
11.3. A party at the hearing who wishes to submit a document using an information technology medium must ensure that the board has the equipment required to read it.
The party must provide the required equipment if the board does not have it.
The board may require that the party file a copy of the document on another medium in order to facilitate its examination.
O.C. 618-2007, s. 11.
12. An expert’s report shall be filed in the record of the board at least 15 days before the date fixed for the hearing.
A commissioner may however authorize the late filing of such a report on the conditions he determines.
O.C. 217-2000, s. 12.
13. A party authorized to produce a writing at the hearing shall provide copies to the other parties present as well as to the assessor and to each member of the board.
O.C. 217-2000, s. 13.
14. A party may not, in the course of the proceedings, withdraw evidence that he has filed in the record, except with the permission of the board and upon the conditions it determines.
O.C. 217-2000, s. 14; O.C. 618-2007, s. 12.
DIVISION V
SUBPOENA
O.C. 217-2000, Div. V; O.C. 618-2007, s. 13.
15. A witness may be required to testify before the board, to file a document with it, or both.
O.C. 217-2000, s. 15; O.C. 618-2007, s. 14.
15.1. A witness is summoned by means of a subpoena issued by the board.
The subpoena form is signed by a commissioner and completed and notified by the party at the party’s expense, and it is incumbent on the party to prove the date of notification.
It contains information useful to the party who completes it as well as to the witness.
O.C. 618-2007, s. 15.
15.2. The subpoena must be notified at least 10 days prior to the date of appearance.
Despite the foregoing, in cases of urgency, a commissioner may, by special order entered on the subpoena, reduce the 10-day notification period; however, the notification must be carried out at least 24 hours before the time set for the appearance.
O.C. 618-2007, s. 15.
15.3. A witness who is required to provide documents concerning the state of health of a person must take the necessary measures to protect the confidentiality of the information in the documents, where applicable.
O.C. 618-2007, s. 15.
15.4. A party who proposes to have a professional testify on the state of health of a worker or to produce an expert witness must inform the board of his decision to do so as soon as the decision is made.
The party must then indicate the name and profession of the witness to the board.
O.C. 618-2007, s. 15.
DIVISION VI
HEARING
16. The hearing shall take place in the region of the worker’s domicile.
The board may choose another place in the interest of justice.
O.C. 217-2000, ss. 16 and 18; O.C. 618-2007, s. 17.
17. A party who is obliged to request the postponement of a hearing shall, as soon as he becomes aware of the grounds he wants to invoke, submit a written application to the board stating the grounds and give notice thereof to the other parties; the application shall include supporting evidence, if required.
Furthermore, in order to make its processing easier, an application for postponement shall indicate whether it has been contested or agreed to by the other parties, the probable duration of the hearing, the presence of experts and possible dates of hearing chosen after consulting the board and the other parties.
The hearing shall be postponed only if the grounds invoked are serious and if required for the ends of justice.
O.C. 217-2000, ss. 17 and 19; O.C. 618-2007, s. 17.
18. The board may record testimony and arguments on audiotape, by videoconference or by any other appropriate means.
No one else may do so without the board’s authorization.
Only the board is authorized to record images of the hearing.
O.C. 217-2000, s. 20; O.C. 618-2007, s. 18.
19. The board may, of his own authority or upon request from a party, prohibit or restrict the disclosure, publication or broadcasting of information or documents identified by it, where required to preserve public order or if the respect of their confidential nature so requires to ensure the proper administration of justice.
O.C. 217-2000, s. 21; O.C. 618-2007, s. 19.
20. The minutes of the hearing shall contain:
(1)  the names of the members and, where applicable, that of the assessor;
(2)  the date and place of the hearing and the time at which it begins and ends;
(3)  the name and address of each party and, where applicable, those of his representative and witnesses;
(4)  the name and address of the interpreter, where applicable;
(5)  the identification and code number of each piece of evidence;
(6)  mention that the hearing is recorded;
(7)  any decision rendered during the hearing;
(8)  any admission and full or partial settlement;
(9)  the date on which the case is taken under advisement; and
(10)  any other mention useful for the purposes of the file.
O.C. 217-2000, s. 22; O.C. 618-2007, s. 20.
21. All persons attending a hearing shall behave with dignity and in a manner that shows respect for the judicial process. They shall refrain from doing anything that could disrupt the hearing.
O.C. 217-2000, s. 23; O.C. 618-2007, s. 21.
22. A witness may be questioned by each of the parties and by the members and the assessor, to the extent necessary to ensure a fair process.
O.C. 217-2000, s. 24; O.C. 618-2007, s. 21.
23. Before being questioned, a witness shall swear that he will tell the truth.
He shall be exempted from this formality if he does not understand the nature of the oath; in such a case, he shall nevertheless be informed of his obligation to tell the truth.
The witness must then state his name and address.
O.C. 217-2000, s. 25; O.C. 618-2007, s. 22.
24. The commissioner may order that a witness testify in the absence of other witnesses.
O.C. 217-2000, s. 26; O.C. 618-2007, s. 23.
25. Where the services of an interpreter are needed for a fair hearing, the board shall make sure that the person proposed for that purpose is capable of doing the translation required; the interpreter shall swear that his translation shall be faithful.
O.C. 217-2000, s. 27; O.C. 618-2007, s. 23.
25.1. The cost of the services of an interpreter is borne by the party who hires the interpreter. However, the board must provide the services of an interpreter to a deaf person.
O.C. 618-2007, s. 24.
26. The board shall take judicial notice of generally recognized facts and of opinions and information within its field of specialization.
O.C. 217-2000, s. 28; O.C. 618-2007, s. 25.
27. No evidence may be relied on by the board in making its decision unless the parties have been given an opportunity to comment on the substance of the evidence or to rebute it.
O.C. 217-2000, s. 29; O.C. 618-2007, s. 25.
28. The commissioner may refuse to receive evidence that is irrelevant, unnecessarily redundant or of such a nature as to not serve the interests of justice.
O.C. 217-2000, s. 30; O.C. 618-2007, s. 25.
29. Evidence provided in relation to a case may also be filed in another case of the board with the authorization of the board and on the conditions it determines.
O.C. 217-2000, s. 31; O.C. 618-2007, s. 25.
30. When a visit of the premises is ordered, the parties shall be informed of the place, date and time of the visit in advance so that they can be present.
The commissioner shall determine the rules applicable to the visit.
O.C. 217-2000, s. 32; O.C. 618-2007, s. 25.
DIVISION VII
RECUSATION
31. If a member other than the commissioner or if an assessor recuses himself at the hearing, the hearing shall resume if that member or that assessor is replaced or, in the case of the assessor, if the commissioner considers that the hearing may resume in his absence.
If the commissioner recuses himself, the hearing shall be suspended until another commissioner is appointed or until a new bench is formed.
O.C. 217-2000, s. 33; O.C. 618-2007, s. 25.
32. An application for the recusation of a member addressed to the president in accordance with section 429.43 of the Act shall give a written account of the facts and grounds on which it is based.
Such an application suspends the proceedings as soon as it is notified to the board.
O.C. 217-2000, s. 34; O.C. 618-2007, s. 25.
33. The member named in an application for recusation shall file in the record a statement indicating his position as to the truthfulness of the facts alleged in support of the application.
The declaration of the member whose recusation is sought can only be contradicted by written proof.
O.C. 217-2000, s. 35; O.C. 618-2007, s. 25.
34. The decision of the president or member designated by him shall be rendered on the record unless the president or the member designated by him considers it necessary to hold a hearing.
If there is a hearing, it shall be held in the absence of the member whose recusation is sought.
O.C. 217-2000, s. 36; O.C. 618-2007, s. 25.
35. A party may, at any time before the decision has been rendered, provided he acts with diligence, apply to the commissioner assigned to the case regarding the recusation of an assessor sitting with him, if the party has good reason to believe that a cause for recusation exists.
An application for recusation suspends the proceedings.
O.C. 217-2000, s. 37; O.C. 618-2007, s. 25.
36. The facts and grounds on which the application for recusation is based and the declaration of the assessor as to the truthfulness of the alleged facts shall be recorded in the file.
The declaration of the assessor can only be contradicted by written proof.
O.C. 217-2000, s. 38; O.C. 618-2007, s. 25.
37. Unless the assessor recuses himself, the commissioner shall decide the application on the record unless the commissioner considers it necessary to hold a hearing.
If there is a hearing, it shall be held in the absence of the assessor.
O.C. 217-2000, s. 39; O.C. 618-2007, s. 25.
DIVISION VIII
NOTIFICATION AND TIME
38. If the board receives a notice of return of a notice of proof and hearing, it may give notice thereof by posting it in one of its offices.
O.C. 217-2000, s. 40; O.C. 618-2007, s. 26.
39. A writing sent by mail is presumed to be received by the board on the date postmarked.
A writing sent by fax is presumed to be received by the board on the date appearing on the transmission slip.
A message sent by electronic mail is presumed to be received by the board on the date of receipt, as recorded by the board’s server.
O.C. 217-2000, s. 41; O.C. 618-2007, s. 27.
40. In computing a time period prescribed by this Regulation, the day marking the start of the period is not counted and, the last day is counted. The holidays are also counted.
The following are holidays:
(1)  Saturdays and Sundays;
(2)  1 and 2 January;
(3)  Good Friday;
(4)  Easter Monday;
(5)  24 June;
(6)  1 July or 2 July if 1 July is a Sunday;
(7)  the first Monday of September;
(8)  the second Monday of October;
(9)  25 and 26 December;
(10)  the day fixed by proclamation or order of the Governor General for the celebration of the birthday of the Sovereign;
(11)  any other day fixed by proclamation or order of the Government as a public holiday or as a day of thanksgiving.
O.C. 217-2000, s. 42; O.C. 618-2007, s. 28; I.N. 2016-01-01 (NCCP).
41. When the date fixed for doing anything falls on a holiday, such thing may be validly done on the next working day.
O.C. 217-2000, s. 43; O.C. 618-2007, s. 29; I.N. 2016-01-01 (NCCP).
REFERENCES
O.C. 217-2000, 2000 G.O. 2, 1298
O.C. 618-2007, 2007 G.O. 2, 2380