In Ontario, you can formally request the Workplace Safety and Insurance Appeals Tribunal (WSIAT) to issue a summons if a crucial witness refuses to testify. You must prove their evidence is highly relevant to your WSIB appeal, and while the WSIAT does not charge a fee to issue the summons, you must pay the witness mandatory conduct money for their travel and time.
Facing a complex workplace injury appeal can be incredibly daunting, especially when the truth depends on someone who refuses to cooperate. Whether you are an injured worker in Toronto, a small business owner in Mississauga, or operating a manufacturing plant in Hamilton, witness testimony can make or break your Workplace Safety and Insurance Appeals Tribunal (WSIAT) hearing. Sometimes, a former supervisor, a reluctant co-worker, or even a treating physician will simply refuse to attend your hearing voluntarily.
When this happens in Ontario, the law provides a vital mechanism to compel their attendance: a formal legal summons. 🔮 A summons is a legally binding order issued by the Tribunal requiring the individual to appear on a specific date, and potentially requiring them to bring specific documents. This step-by-step guide explains how to properly request a WSIAT summons, the rules surrounding conduct money, and why hiring a local employment law firm is highly recommended to manage this complex evidentiary process.
Step-by-Step Process for Summonsing a Witness in Ontario
The WSIAT does not issue a summons automatically just because you ask for one. You must convince a Vice-Chair that the witness is absolutely essential to resolving the core issues of your appeal. Following the correct legal procedure is critical to avoid delays in your hearing schedule.
Step 1: Attempt to Secure Voluntary Attendance
Before involving the Tribunal, you must make a genuine effort to invite the witness voluntarily. 📧 Send a polite, written request to the individual explaining why their testimony is needed and offering to cover their travel expenses. Keep a clear copy of your emails or letters, as well as any responses proving that they have explicitly refused to attend or have simply ignored your repeated requests.
Step 2: Determine the Relevance of the Evidence
You must clearly articulate exactly what this witness is going to say and why it matters. The WSIAT will rigorously evaluate whether the proposed testimony is relevant to the workplace injury dispute. For example, if a co-worker witnessed the exact moment a piece of machinery failed in an Ottawa factory, their evidence is highly relevant. If they only heard second-hand rumours weeks later, the WSIAT may legally deny your summons request.
Step 3: Submit a Formal Request to the WSIAT
If the witness refuses, you must write a formal letter or submit a request to the WSIAT well before your hearing date. 📝 In your submission, you must include the full name and address of the witness, a detailed summary of the anticipated evidence, proof that you attempted to invite them voluntarily, and a clear explanation of why their testimony is crucial to your specific legal arguments.
Step 4: Review by a WSIAT Vice-Chair
Your request is then forwarded to a WSIAT Vice-Chair for review. The Vice-Chair acts as the neutral adjudicator and decides if issuing the summons is legally appropriate and fair. If they approve the request, the Tribunal will draft the official summons document, sign it, and send it to you or your legal representative so that you can facilitate service.
Step 5: Personally Serve the Witness and Pay Conduct Money
You cannot simply mail or email a summons. 👥 Under Ontario law, a summons must be served “personally” directly into the hands of the witness. Furthermore, at the exact moment of service, you must hand the witness “conduct money.” This is a mandatory cash payment or certified cheque to cover their travel expenses to the hearing centre and a daily attendance allowance. If you fail to provide conduct money, the summons is legally invalid.
How Much Does it Cost in Ontario?
While the administrative act of requesting the summons is free, executing it involves several out-of-pocket expenses that you must carefully budget for.
- WSIAT Filing Fee: The Tribunal charges exactly $0 CAD to review and issue a summons.
- Conduct Money (Daily Allowance): You must pay the witness approximately $50 CAD for each day of attendance required.
- Conduct Money (Travel): You must cover reasonable travel expenses, typically around $0.40 to $0.50 CAD per kilometre if they are driving, or the cost of standard public transit.
- Process Server Fees: Hiring a professional process server in Ontario to physically hand the documents to a hostile witness usually costs between $100 and $250 CAD.
- Law Firm Fees: Retaining a lawyer to handle your WSIAT appeal and draft the summons arguments generally ranges from $300 to $600 CAD per hour.
How Long Does the Process Take?
Time is of the essence when dealing with witnesses. ⏱ You should submit your summons request to the WSIAT at least 4 to 6 weeks before your scheduled hearing date to allow the Vice-Chair time to review it. Once issued, Ontario legal rules generally require that you serve the witness and provide the conduct money at least 10 days before the actual hearing.
Voluntary Witnesses vs. Summonsed Witnesses
| Factor | Voluntary Witness | Summonsed Witness |
|---|---|---|
| Attendance | Shows up willingly based on a mutual agreement. | Legally compelled to appear by a formal Tribunal order. |
| Conduct Money | Can be negotiated or entirely waived by the witness. | Strictly mandatory. Failure to pay invalidates the legal summons. |
| Consequences of No-Show | Frustrating, but no immediate legal penalties for the witness. | Can be found in contempt or face a bench warrant for their arrest. |
Frequently Asked Questions (FAQ)
What happens if a summonsed witness simply ignores the order?
If a properly served witness with conduct money fails to attend, the WSIAT Vice-Chair can request assistance from the Superior Court of Justice. The court can issue a bench warrant to have the police compel the witness to attend, and they may face severe contempt of court charges.
Can I summons an expert doctor to testify at WSIAT?
Yes, but it is highly complex. Doctors typically provide evidence through written medical reports. If you require a doctor to testify in person, you must prove that their written report is insufficient and that cross-examination is vital. Conduct money for expert physicians can be significantly higher.
Can the WSIAT refuse to issue a summons?
Absolutely. If the Vice-Chair determines that the witness’s testimony is irrelevant, repetitive, or meant purely to harass or intimidate a former employer or co-worker, they will legally deny your request to issue the summons.
Can a summons force a witness to bring documents?
Yes. This is called a “summons to witness (duces tecum).” You can specifically ask the WSIAT to order the witness to bring physical objects, logbooks, HR files, or unredacted emails that are highly relevant to your workplace injury appeal.
Do I absolutely need a lawyer to request a summons?
While not strictly mandatory, navigating the evidentiary rules of the WSIAT is incredibly difficult for someone without legal training. A specialized law firm or a licensed paralegal ensures the request is drafted correctly and the strict rules of personal service are flawlessly executed.
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