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WSIAT - Evidence. Dean v 3150 Hawthorne Road Ltd.
In Dean v 3150 Hawthorne Road Ltd. (Div Court, 2023) the Divisional Court considers the WSIA 'benefit of the doubt' evidentiary provision [WSIA s.124(2)]:[49] Finally, the applicants submit that the Tribunal's decision was unreasonable because it failed to consider the consequences of its decision when it failed to apply the "benefit of the doubt" principle set out in s. 124(2) of the Act.
[50] However, as the Tribunal correctly pointed out, by its own wording, s. 124(2) of the Act only applies to a person claiming benefits under the Act, not to those seeking to avoid having to claim benefits. The relevant portions of the section read:124(1) The Appeals Tribunal shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent.
(2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [Emphasis added.] [51] In any event, even if the benefit of the doubt principle applied in right to sue applications, it would only apply where it was not practical to decide an issue because of the equal weight of the evidence relating to that issue. That is not the case here. As the Tribunal's reasons ably demonstrate, this was not a close call.
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