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Important Caselaw - Applications for Judicial Review

Knowledge and Information for Injured Workers, by Injured Workers

Applications for Judicial Review


An application for Judicial Review is a process where a person asks the court to intervene in a decision of a: lower court, board, tribunal, commission, government agency, and/or government officer. Applications for judicial review are much different than an appeal. This is because an appela is a right, by law, whereas this is soemthign where the court involves itself in the decision in the interests of justice. While many laws say the decisions of an administrative board, commission, tribunal, or agency are not open to review by a court, this is not correct. This is because the courts have long recognized their constitutional authority to judicial review decisions. The courts authority comes from s. 96 of the Constitution.
It is important to note that judicial review is not a right and as such one must convince the court that doing so would be in the interests of justice. This is done by ensuring their case meets a certain test or threshold as set by the courts. As you read throguh the different types of judicial reviews and cases you will learn the tests to meet. There are several types of judicial review. They are:


Injunction, is very well known. This is used when a party asks the court to order the government body/officer to stop doing something or prevent doing something. The court may grant the request for an injunction to prevent harm or protect a legal right.The common test for a successful injunction is that:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.

Declaration, is used when a party request the court make a statement about the parties’ legal positions or the law that applies to the party. A declaration may be made requested to be used to rule on a party’s rights or whether the decision-maker acted within the decision maker’s legislative authority.

Mandamus, is used when a party makes a request of the court to order the government body/officer to do something. For example, if the court decides that a government body/officer had a duty to do something and choose not to, then the court order the government body/officer to perform that duty.
To learn more mandamus, you can review my application in “My Story” and learn of my attempt. I had attempted to use a Mandamus to have the court order the board and/or tribunal to schedule, hold, an appeal hearing, within a set time frame. That additionally they would be required to issue a decision in a set time. The courts, including the Supreme Court of Canada, did not agree my matter was warranting of court intervention. This was very unfortunate for all injured workers across Canada and most importantly the furtherance of justice. This is because had the courts agreed with me, it would have meant that, as the courts have long claimed, that “injured workers have a right to speedy determination and payment of workers compensation.” As such injured workers could enforce that right. Ironically, most legal forums have an option for a matter to be heard on an urgent basis, but you will sadly find this is not the case with the workers compensation boards or tribunals/commissions. Instead, injured workers are forced to wait months years and decades for hearings and decisions.
As the famous legal doctrine says Justice Delayed, is Justice Denied!

Prohibition, this prevents a government body/officer from continuing an unlawful process or action. This is granted if the court agrees the government body/officer has no lawful authority to do something or it would be unlawful for the government body/officer to do something.

Certiorari, this is the most common application involving workers compensation matters and most mentioned. This to most is understood to be like that of appeal. This is when a higher court reviews a lower court/government body/officer decision and declares it of no lawful authority or force. If the court makes such a decision the court will quash the decision and either send the decision back to the original decision maker to be correctly redone, or the court may make its own decision in its place. For the court to make such a determination a party must prove the decision was either not correct or unreasonable. This is called the standard of review and in most cases the default standard is the higher one being that of reasonableness. To understand and learn what is the reasonable and correctness standards and how to properly argue this type of application for judicial review see the Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

It is most important to know the following five points when reviewing the decisions below.

First, that when reviewing decisions of applications for judicial review that you understand that applications for judicial review CANNOT be denied by law. This simply means if a law says that a court cannot review a decision, then this means the corut can under s. 96 of the Constitution.

Second, that each type of application has a different standard to meet or test. It is very important to understand this if you are considering that type of application. For example, with Certiorari, I have provided the Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 which provides within the decision, the test and how to meet it.

Third, that when reviewing decisions of other provinces/territories, it is important to take note the province/territory the decision was made in. Know that decisions from another province/territory may not carry the same weight as if the decision was made in the province/territory you are filing your applicator in. For example, if a decision below was made in in Ontario and you live in British Columbia, or Alberta, then it may not have much impact in those provinces. However, you should still use it in your arguments, as the court you are in may still consider. This is especially so if your province/territory has not dealt with that particular issue.

For this reason, I will try my best to include court decisions from all provinces/territories in Canada involving workers compensation matters. Also, if possible I will try and even include decisions from other counties as well.

Four, that applications for judicial review, according to current laws, must include the decision maker as a party. To clarify, this means that when an injured worker files an application for judicial review to the courts. The injured worker must list the employer as a respondent and also list the tribunal or board, whomever made the decision. This is something I am personally opposed to and feel that it violates the very principles of fundamental justice being the Rule of Law. The Ruel of Law simply states a decision maker must be impartial. I argue that allowing a decision maker a say in what might as well be an appeal of the decision makers decision is lacking in impartiality. This is because the decision maker gets to defend their decision against you. So far, the courts have ignored my arguments.

Five, that applications, as well as appeals to higher courts can and occasionally do have intervenors. An intervenor is a party that has been allowed to speak on the application. This can be allowed by legislation or by an order of a judge. You will see for the most part that injured workers do not have any intervenors and are typically left to fend for themselves.
While in some extremely rare cases, I have observed organizations will involve themselves, or intervene in a case, I do not know what the standard, threshold, or test is for them to do so. This is because there are quit a few. Eventually, I will be contacting each organization I know that has intervened in a case and ask them what the standard, threshold, or test for them to do so is. I will then post that information here.



The following cases involving applications for Judicial Review, which directly involve workers compensation matters. The list below is exclusively from Ontario, but I will be including cases involving applications for Judicial Review from other jurisdicitons in Canada and even other countries. Also for ease of review, I created two types of lists. The first is just applications for Judicial Review that were granted. Then the second list is with both granted and denied applications for Judicial Review. Both are placed in chronological order. This has been done so you can see what works and what does not.

It can not be stressed enough of the importance of knowing the criteria to meet when doing or having done an applicaiton for judicial review – certiorari. To do so, you MUST read and be familiar with the Supreme Court of Canada’s recent decision on judicial reviews – certiorari.

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65


The decision provides the test or requirements you MUST meet to have your application for judicial review granted by the court. This case only speaks on applications for judicial review – certiorari. This, for simplistic sake is an appeal of an administrative decision. I will provide reference to other cases that outline the test for the other types of applications for judicial review as explained above.
Know that the decision is quite lengthy. This is because the Supreme Court of Canada explains in detail its reasoning for each part of the decision. The main part or requirements start at paragraph 99 of the decision. The above link will take you directly there.
This is where the Supreme Court of Canada states that a reasonable decision is one that MUST be BOTH based on

an Internally Coherent Reasoning AND is
Justified in Light of the Legal and Factual Constraints That Bear on the Decision.

Therefore, you need only convince the court the decision either fails to be one or both and the court will grant your application. The Supreme Court of Canada explains the two criteria in detail in their decision. I will explain how I did this and how to make an effective legal argument on the webpage Fighting Your Respective WCB/WSIB/WorkSafe.
Please know I am still working on the website updates and it maybe sometime before I complete this page. When it is complete I will update this paragraph accordingly.




Granted Applications for Judicial Review

WEST v. WSIB - Ontario - 2007
Application for Judical Review - Certiorari made by injured worker GRANTED

Rodrigues v. WSIAT - Ontario - 2007
Application for Judical Review - Certiorari made by injured worker GRANTED
Appeal to Corut of Appeal for Ontario - Granted
Appeal to Supreme Court of Canada - Denied
This application was granted by the Court, then overturned by the Corut of Appeal and appeal refused by Supreme Court of Canada.

Amin v. WSIAT - Ontario - 2009
Application for Judical Review - Certiorari made by injured worker GRANTED
This application was grated by the Court, claiming it was an unreasonable decision.

Toronto Star Newspapers Limited v. WSIAT - Ontario - 2017
Application for Judical Review - Certiorari made by the employer GRANTED
This case...

Ferreira v. WSIAT - Ontario - 2019
Application for Judical Review - Certiorari made by injured worker GRANTED
The Court made clear that decision makers are NOTmedical experts and as such can not ignore medical evidence.
This was also importantly a case about the WSIAT acussing the injured worker of faking, with No proof.


Morningstar v. WSIAT - Ontario - 2020
Application for Judical Review - Certiorari made by injured worker GRANTED
This case allows an injured worker to sue their employer for workplace harassment.

McQuoid v. WSIAT - Ontario - 2022
Application for Judical Review - Certiorari made by injured worker GRANTED
This case invovled an injured worker who applied for judical review on basis that WSIAT ignored medical evidence
and placed their own opinion or non medical evidence in its place.





Granted and Denied Applications for Judicial Review

WEST v. WSIB - Ontario - 2007
Application for Judical Review - Certiorari made by injured worker GRANTED

Rodrigues v. WSIAT - Ontario - 2007
Application for Judical Review - Certiorari made by injured worker GRANTED
Appeal to Corut of Appeal for Ontario - Granted
Appeal to Supreme Court of Canada - Denied
This application was granted by the Court, then overturned by the Corut of Appeal and appeal refused by Supreme Court of Canada.

Kamara v. WSIAT - Ontario - 2009
Application for Judical Review - Certiorari made by injured worker DENIED
This application was denied by the Court, claiming it was a reasonable decision.

Amin v. WSIAT - Ontario - 2009
Application for Judical Review - Certiorari made by injured worker GRANTED
This application was grated by the Court, claiming it was an unreasonable decision.

Boroumandi v. WSIAT - Ontario - 2010
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Chaudhari v. WSIAT - Ontario - 2010
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Becker v. WSIAT - Ontario - 2012
Application for Judical Review - Certiorari made by injured was DIMISSED For DELAY
The injured worker brought an application for Judical Review.
In response, the WSIAT brought a motion to dimiss for delay and the motion was granted, meaining the application was dismissed


Campbell v. WSIAT - Ontario - 2013
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Marttunen v. WSIAT - Ontario - 2013
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Dicks/WSIAT v. Bellissimo - Ontario - 2013
Application for Judical Review - Certiorari made by employer DENIED
This case was aout a right to sue matter...

Gouthro v. WSIAT - Ontario - 2014
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Blatz v. WSIAT - Ontario - 2016
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Martin v. WSIAT - Ontario - 2016
Application for Judical Review - Certiorari made by injured worker DENIED
This case...

Toronto Star Newspapers Limited v. WSIAT - Ontario - 2017
Application for Judical Review - Certiorari made by the employer GRANTED
This case...

The Corporation of the County of Simcoe v. WSIAT - Ontario - 2018
Application for Judical Review - Certiorari made by the employer DENIED
This case...

Hydro Ottawa v. WSIAT - Ontario - 2019
Application for Judical Review - Certiorari made by the employer DENIED
This case...

Ferreira v. WSIAT - Ontario - 2019
Application for Judical Review - Certiorari made by injured worker GRANTED
The Court made clear that decision makers are NOTmedical experts and as such can not ignore medical evidence.
This was also importantly a case about the WSIAT acussing the injured worker of faking, with No proof.


Chen v. WSIAT - Ontario - 2020
Application for Judical Review - Certiorari made by injured worker DENIED
This case was interesting in that the injured worker struggled to udnerstand the legal system and asked for assitance..

Morningstar v. WSIAT - Ontario - 2020
Application for Judical Review - Certiorari made by injured worker GRANTED
This case allows an injured worker to sue their employer for workplace harassment.

Radzevicius v. WSIAT - Ontario - 2020
Application for Judical Review - Certiorari made by injured worker DENIED
This case....

McQuoid v. WSIAT - Ontario - 2022
Application for Judical Review - Certiorari made by injured worker GRANTED
This case invovled an injured worker who applied for judical review on basis that WSIAT ignored medical evidence
and placed their own opinion or non medical evidence in its place


There are a lot more decisions to add to the above list. I hope to have them all added soon.
Also along with my commentary for each to make it easy for people to see relevant cases and issues pertaining to their case.


West v. WSIB 2005 - Ontario
West v. Workplace Safety and Insurance Board, 2005 CanLII 34354 (ON SCDC)

Respondents:
The Workplace Safety and Insurance Board – WSIB - Ontario’s workers compensation board.

Intervenors:


This case is unique from any other application for judicial review for three reasons.

First, this case involves an application for judicial review for the corut to review a decision where the matter was at the workers compensation board. This is Ontario, it is the Workplace Safety and Insurance Board - WSIB. Normally, an application for judicial review, in Ontario and most often eslewhere follows after an appeal to an appeals tribunal. The signifance of this case indicates that, in some rare cases, one could avoid the lengthy workers compensation appeals process and file and application for judicial review against a deciion of the workers compensation board.

Second, this case confirms that when an injured worker has a right to sue another party - athid party, not being their employer, the board, in this case being the WSIB, has an obligation to notify the worker of their right to sue the third party. If the WSIB fails to notify the worker of their right, the worker's right to sue the third party is not taken away. Note that the injured worker may have an issue if delayed by bringing a claim against the thrid party, with the two year limitations period. However, they should never assume they have run out of time. One should always consult with a lawyer to determine if any exceptions to the limitaitons period for a civil claim applies.

Third, this case was about the right of a worker of a Schedule 2 Employer. That being their right to sue a Schedule 1 Employer, or more acurately in this case a third-party.

Schedule 1 and 2 Employers
Within workers compensation law there are two types of employers. At least, this is the case for Ontario. I will clarify this later, as I research and provide more caselaw for other provinces in Canada, and other countries.
Schedule 1 Employers are employers who pay into a fund. Previously, in Ontario, this was called the "injury fund". Now and not surprisingly, it is called the "insurance fund". The fund is then supposed to be used to pay injured workers compensation for their injuries and to manage the fund. The main and sole purpose of the fund is that it means that even if your employer goes bankrupt or terminates your employment you have a guarantee of workers compensation. The WSIB administers the fund and pays workers compensation directly to injured workers. Injured workers who are employed by Schedule 1 Employers, in Ontario, receive 85% of their net income while they are unable to work. If their work injuries occur prior to January 1, 1998 then the injured worker receives 90% of their net income.
Schedule 2 Employers are employers who pay all costs of a work injury directly. This means they pay, all healthcare costs, 100% of loss of income, any retraining and other associative costs. They also pay a fee to the WSIB to determine entitlement.
A Schedule 2 Employer is defined as:
- organizations funded by public funds (from the federal, provincial and/or municipal governments)
- organizations legislated by the province but self-funded
- A number of other businesses who are privately owned but involved in federally regulated industries such as telephone, airline, shipping, and railway.
Note that the WSIB has a criteria for a employer to be a Schedule 2 employer. Also that a schedule 2 employer can choose to become a schedule one employer if they wish.

Schedule 1 and 2 Employers are defined, in Ontario, under Ontario Regulation 175/98.

To be clear a worker of a Schedule 1 Employer CAN NOT sue a Schedule 1 or 2 employer. However, there are other rare circumstances where a worker of a schedule 1 employer can sue, such as a motor vehicle accident.
While the Courts across Canada have determined that the right of an injured worker to sue their employer for their work injuries is an infringement of s. 7, being, security of the person, of the Charter of Rights and Freedoms, the infringement is justified under s. 1 of the Charter of Rights and Freedoms under s. 1. The courts claim it is because injured workers get speedy determination and payment of benenfits. I will/have explain it in more detailed and provided the cases across Canada under the topic "Sue a Third Party".


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Rodrigues v. WSIAT 2007 - Ontario
Rodrigues v. Workplace Safety & Insurance Appeals Tribunal, 2007 CanLII 37018(ON SCDC)
Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719
Joe Rodrigues v. Workplace Safety and Insurance Appeals Tribunal, 2009 CanLII 23087 (SCC)

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
Workplace Safety and Insurance Board

This case was about an injured worker seeking a review of the WSIAT decision claiming he was entilted to a recalculation of his pre-injury income for the calculation of workers compensation.
The court granted the application on the grounds the WSIAT's decision was patently unreasonable.
On appeal, the Court of Appeal for Ontario foudn the WSIAT's deicion was reaonable and overturned the Divisional Court's decision.
The injured worker applied to the Supreme Court of Canada to appeal the Court of Appeal's decision but was denied their request.


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Kamara v. WSIAT 2009 - Ontario
Kamara v. Workplace Safety & Insurance Appeals Tribunal, 2009 CanLII 26353 (ON SCDC)

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about an injured worker seeking a review of the WSIAT decision claiming he was entilted to workers compensation.
The court denied the application on the grounds the WSIAT's decision was reasonable.


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Amin v. WSIAT 2009 - Ontario
Amin v. Workplace Safety & Insurance Appeals Tribunal, 2009 CanLII 75629 (ON SCDC)

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about an injured worker seeking a review of the WSIAT decision claiming he was entilted to workers compensation. This was becuase the WSIB accepted the work injury but denied workers compensation.
The court granted the application on the grounds the WSIAT's decision was unreasonable.


Amin, Maqsood v. Workplace Safety and Insurance Appeal TribunalONCA - M38200
The WSIAT sought permisison to appeal the Divisional Court's decision to the Court of Appeal for Ontario. On February 3, 2010 the Corut of Appeal denied the WSIAT request.

Workplace Safety and Insurance Appeals Tribunal v. Maqsood Amin, 2010 CanLII 32432 (SCC)
The WSIAT sought permisison to appeal the Court of Appeal's decision to deny to hear their request to appeal to the Supreme Court of Canada and this was denied by the Supreme Court of Canada.


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Boroumandi v. WSIAT 2010 - Ontario
Boroumandi v. Workplace Safety and Insurance Appeals, 2010 ONSC 2391

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Chaudhari v. WSIAT 2010 - Ontario
Chaudhari v. Ontario (Workplace Safety and Insurance Tribunal), 2010 ONSC 1032

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Becker v. WSIAT 2012 - Ontario
Becker v. Ontario (Workplace Safety and Insurance Tribunal), 2012 ONSC 6946

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about an injured worker who brought an application for judicial review. However, the WSIAT broguht a motion to dimiss. The Moiton was granted and the appliction was dismissed for delay.

My apologies I have not finished this section yet.


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Campbell v. WSIAT 2013 - Ontario
Campbell v. Ontario (Workplace Safety and Insurance Tribunal), 2013 ONSC 6870

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Marttunen v. WSIAT 2013 - Ontario
Campbell v. Ontario (Workplace Safety and Insurance Tribunal), 2013 ONSC 4317

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Dicks/WSIAT v. Bellissimo 2013 - Ontario
Dicks, (Ontario) Workplace Safety and Insurance Appeals Tribunal v. Bellissimo, 2013 ONSC 7866

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about...
A right to sue in a civil claim matter

My apologies I have not finished this section yet.


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Gouthro v. WSIAT 2014 - Ontario
Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
The City of Toronto - Employer.

Intervenors:
The Attorney General for Ontario chose to intervene.

This case was about....

My apologies I have not finished this section yet.


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Blatz v. WSIAT 2016 - Ontario
Blatz v. Workplace Safety and Insurance Appeals Tribunal, 2016 ONSC 7259

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Intact Insurance Company - Standing unknown.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Martin v. WSIAT 2016 - Ontario
Martin v. Workplace Safety and Insurance Appeals Tribunal, 2016 ONSC 7364

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Toronto Star Newspapers Limited v. WSIAT 2017 - Ontario
Toronto Star Newspapers Limited v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Robert Pearson - injured worker.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.
However, I do wish to express my concern witht his case. Specifically, that the applicant, being the Toronto Star, is a major media outlet. My concern is that it raises serious ethical and moral issues over the lack of media attention for injured workers, by the media.


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The Corporation of the County of Simcoe v. WSIAT 2018 - Ontario
The Corporation of the County of Simcoe v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 1319

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Kenneth Priestman - injured worker.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Hydro Ottawa v. WSIAT 2019 - Ontario
Hydro Ottawa v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 4898

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Doug Featherstone - injured worker.

Intervenors:
There were no intervenors in this application.

This case was about....

My apologies I have not finished this section yet.


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Ferreira v. WSIAT 2019 - Ontario
Ferreira v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 3437

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.

Intervenors:
There were no intervenors in this application.

This case was about an injured worker who was denied further entitlement to ongoing workers compensation. The injured worker claimed that the workers compensation appeals tribunal unreasonably went beyond its expertise and made findings as to the injured worker’s credibility without considering the uncontroverted evidence from all the medical professionals who had assessed the injured worker as to the nature of his disability.

The tribunal had alleged that the injured worker was allegedly faking their injuries. This was based on the Tribunal’s own personal observations of the injured worker. As such, the tribunal refused to consider any of the medical evidence before them and denied the injured workers claim for workers compensation benefits.

The court ultimately found in doing so, the tribunal committed two serious errors in their decision, which made the tribunal’s decision unreasonable.
First, the tribunal discounted the medical evidence on file, which was not disputed. In place of the medical evidence, the tribunal made its own personal opinions. The tribunal’s stated justification was that the medical experts did not test for malingering or faking. To this the court responded that the “Tribunal engaged in speculation, not legitimate fact finding”.
Another important point noted by the court was that in addition to the Tribunal deciding based on their own personal opinions, the court also noted the tribunal improperly based the worker’s medical abilities on the injured worker’s being able to retain his driver’s licensee. This is very significant, as decision makers will often make the incorrect and unlawful assumption that if a person still retains a driver’s license they can work and drive with no restrictions.
Second, the court found that the tribunal failed to properly apply the board policy and the board’s determinations that the injured worker was permanently disabled. Most importantly the Court also found that the tribunal and the board committed a serious error by claiming the injured worker was not co-operative, but failed to “take into account the fact that the [injured worker’s] compensable condition is characterized by anxiety, depression, withdrawal, an excessive fear of re-injury, and tendency to avoid any anxiety-creating situations such that the sufferer’s everyday activities become so restricted that they cannot leave the house for frequent intervals.

I find this decision to be very helpful in fighting many different issues. Most importantly the board and tribunals to falsely and accusatorily accused someone of faking when they have no reason or proof. In any other real world this would be without question a case of defamation and a very winnable civil claim. However, it is workers compensation and thus virtually impossible to win. I also note that as an injured worker or advocate you really need to be mindful of these very common tactics of falsely claiming an injured worker is faking.
Also, be mindful the boards and tribunals use different words and phrases to describe faking, which causes further confusing and intentional deception. When reviewing a claim file be on the look out for words like: Malinger/Malingering, Somatic Symptom Disorder, Functional Overlay, and Histrionics.
Also know that in addition to a decision maker not being allowed to make such a diagnosis either is a medical professional who is not specialized in mental health. Specifically they must be either a phycologist or a psychiatrist and they must make the diagnosis in accordance with DSM-V.

Also look at the case of Cima v. Workers Compensation Appeal Tribunal, 2016 BCSC 931.
Note that the above case is a case from British Columbia. It carries little weight in Ontario, but can be used as reference in your arguements to the Tribunal or Courts, to further prove your point. The point being that a decision maker making up medical diagnosis is "patentently unreasonable".


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Chen v. WSIAT 2020 - Ontario


My appologies I ahve not compelted the brief and comments for this case as yet. It may take me sometime as it is quite extensive with numerous endorsements. I will add that I found this case of great interest to me. This is because it deals with what is commonly known as a clear denial of access to justice issue.


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Radzevicius v. WSIAT 2020 - Ontario
Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Toronto Fire Services - City of Toronto - Employer.

Intervenors:
There were no intervenors in this application.

This case was about an injured worker who...

My apologies I have not finished this section yet.


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Morningstar v. WSIAT 2021 - Ontario
Morningstar v. WSIAT, 2021 ONSC 5576

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Hospitality Fallsview Holdings Inc., Operating as Hilton Niagara Falls/Fallsview Hotel and Suites - Employer.

Intervenors:
The Industrial Accidents Victims Group of Ontario – IAVGO was granted permission of the court to intervene in this appeal. IVAGO is a specialty not for profit legal clinic, which is partially funded by the Legal Aid Ontario. IAVGO is one of three specialty legal aid clinics in Ontario that provide free representations services to injured workers. For more information about IVAGO go to their their website https://iavgo.org

This case was about a worker who was repeatedly harassed in the workplace by her employer and co-workers.

The important points to note on this case was first, the injured worker never claimed workers compensation benefits. Instead, the injured worker filed a civil suit against the employer.

Another point is that in cases of workplace harassment if it is done by a co-worker or even a customer of the employer, the employer is legal responsible. In such case sit is best to refer to the provincial/territorial occupational health and safety legislation for workplace harassment. For example, in Ontario, like most other jurisdictions, once an employer has been made aware of the workplace harassment, they employer has a lawful duty to act.

It is important to note that the Injured Worker did not dispute the WSIAT’s ruling that her claims were barred for lost wages due to medical leaves prior to her alleged constructive dismissal, for a breach of the Occupational Health and Safety Act, or for harassment. This was her claim for workers compensation. The remaining issues before the Divisional Court were focused on whether the WSIAT properly barred the injured worker for their lawful right to damages in civil court, which was for their constructive dismissal. On the issue of the issue of constructive dismissal, the Court allowed the Application and quashed the decision of the WSIAT as being unreasonable.

Note that constructive dismissal occurs when a worker is forced to quit their job for reasons that prevent the worker from remaining at work. Some examples are, workplace harassment, unsafe and unsuitable work, employer falling to pay worker, employer failing to provide worker with work, and many other examples. A similar claim could be obviously made for wrongful dismissal. That is, if a worker was terminated unjustly by their employer, even if the law allows the termination.


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McQuoid v. WSIAT 2022 - Ontario
McQuoid v. Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 1629

Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.


Intervenors:
There were no intervenors in this application.

This case is about initial entitlement of a claim. This WSIAT denied entitlement, not on medical evidence, but on a delay by the worker seeking medical attention. This was found to be unreasonable by the Divisional Court.

The injured worker was mopping a floor in a bathroom. The injured worker fell on the wet floor, hitting his lower-back on a toilet applied.
The WSIB determined and agreed the accident occurred. However, the WSIB denied the injured worker’s current injury was the cause of the work accident. The WSIB based this decision on the injured delay in seeking medical care and the injured worker performing regular duties after the accident.

without knowing exactly what happened these are two factors that are of great concern to me. First, that often individuals do not have a doctor and if they do the doctors are not often readily available. This is due to the illegal cuts to our health care system.
In my own case I wanted to avoid the hospital as average wait time is 12 hours, which is an injury in of itself. I then had to wait four days to see my doctor. I recalled the WSIAT raising issue over this. However, the WSIB fully accepted my injuries and accident. This confirms the stigma or hatred of injured workers by the WSIAT.


The Divisional Court confluxes the WSIB and the WSIAT decisions into one decision. So, it is a little difficult to understand the whole story. Being what did the WSIB say and what did the WSIAT say. One can easily conclude that the WSIB took the position to ignore medical evidence and the WSIAT just agreed and rubber stamped the WSIB’s decision.
However, I would say the key take away on this decision is that the court recognized that the WSIAT intentional ignored medical evidence when at para 47, stated that “The problem with the adjudicator’s explanation is that it ignores the medical evidence…”

Thank you to Richard for bringing this case to my attention. If know of a positive case let me know.


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