Applications for Judicial Review - Ontario
An application for Judicial Review, in Ontario, can be brought before the Ontario Superior Court of Justice – Divisional Court, or in urgent applications before the Ontario Superior Court of Justice.
The Ontario Superior Court of Justice – Divisional Court, is Ontario’s lower appeal court. This is where appeals and applications for judicial review are heard from lower courts, boards, tribunals, and commissions. Any final decision of the Ontario Superior Court of Justice – Divisional Court can be appealed to Court of Appeal for Ontario, with permission of the Court of Appeal for Ontario.
The Ontario Superior Court of Justice, is Ontario’s trial court. This is where urgent applications for judicial review are heard from lower courts, boards, tribunals, and commissions. Note that one must prove the application is urgent. Any final decision of the Ontario Superior Court of Justice can be appealed to Court of Appeal for Ontario.
The Court of Appeal for Ontario, is Ontario’s highest court. The Court of Appeal for Ontario hears appeals from the Ontario Superior Court of Justice – Divisional Court, with permission of the Court of Appeal. The Court of Appeal for Ontario also hears appeals from the Ontario Superior Court of Justice. Any final decision of the Court of Appeal for Ontario can be appealed to the Supreme Court of Canada, with permission of the Supreme Court of Canada.
The first is applications for Judicial Review that were granted.
The second list is with both granted and denied applications for Judicial Review. Both lists have been placed in chronological order. This has been done so you can see what works and what does not. The type of Judical Review has also been identified, whether Injunction, Mandamus, Prohibition, or Certiorari.
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. For example in applications for judicial review that are certiori, you MUST read and be familiar with the Supreme Court of Canada’s recent decision on judicial reviews – certiorari.
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.
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 - 2007Application 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.
Grisales v. Workplace Safety and Insurance Board - Ontario - 2023
Application for Judicial Review - Certiorari made by the Injured Worker & ONIWG GRANTED
This case involved a worker who was challenging the way the WSIB calculates the cost-of-living increase. The importance of this case was that the WSIB claimed the cost-of-living letter was an information letter and not a decision letter. The Divisional Corut disagreed and agreed the WSIB’s decision to do that was unreasonable.
Granted and Denied Applications for Judicial Review
WEST v. WSIB - Ontario - 2007Application 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 Court 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 the WSIAT ignored medical evidence
and placed their own opinion or non medical evidence in its place
City of Toronto v. WSIAT - Ontario - 2023
Application for Judical Review - Certiorari made by Employer DENIED
This case invovled an employer being the City of Toronto who applied for judical review on basis that the WSIAT and rendered an unreasonable decision. The worker was a fire fighter for the City of Toronto and was terminated from his employment. The WSIAT detemriend that
Mihindukulasuriya v WSIAT - Ontario - 2023
Application for Judical Review - Certiorari made by Injured Worker DENIED
This case is simply about a complete and utter denial of acess to justice!
The injured worker attempted to do their application by themselves, as they were clearly REFUSED any representation, even though an injured worker has a right to be provided representation, by right of s. 176 of the WSIA.
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
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. 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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".
Also in Ontario, there was a case before the WSIAT, WSIAT Decision 1193/21. Where the WSIAT also recognized the expert nature of medical opinions and reversed a WSIB appeals decision citing the above noted Divisional Court case. Specifically, that a decision maker is NOT a medical expert.
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Chen v. WSIAT 2020 - Ontario
Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT
WSIAT Decision Decision No. 3144/18, 2020 ONWSIAT 939 https://canlii.ca/t/j8bk3 The injured worker, Ms. Chen, had brought a request before the WSIAT under s. 31 of the Workplace Safety & Insurance Act to have the WSIAT declare that Ms. Chen is not prevented by s. 28 of the Workplace Safety & Insurance Act from suing their employer.
Divisional Court Decisions In 2020, the Ontario Superior Court of Justice - Divisional Court, is the court in Ontario which hears applications for judicial review, changed the process of hearing applications for Judicial Review. This was the result of COVID-19.
Previously, applications for judicial review would be heard in the regional court centre where it was filed. For example, this was Toronto, Brampton, Hamilton, London, Waterloo, and so on. This changed to all applications being heard in Toronto. Part of the change meant that case management was required as part of Toronto’s court rules. This in many ways slowed the process down considerably. However, it was met to ensure that the application was actually ready to be heard and not dismissed prematurely.
Note: That urgent applications are heard by the Superior Court on any day motions according to s. 6(2) of the Ontario Judicial Review Procures Act.
There were a number of endorsements leading up to the eventual hearing of the injured workers’ application for judicial review. I have listed them all along with a brief summary of each endorsement.
I found this case to be of interest to me. This is because the injured worker started as unrepresented. Then, in the end, the injured worker had representation. I am unclear and will clarify if they were provided free representation, or whether they paid for it.
Representation is the most important aspect of any legal issue involving injured workers. It is why I believe the number of judicial reviews involving workers compensation are so low. This is because the representative is acting like a person’s voice.
Therefore, if you do not have a representative then it seems you have no voice. Often, individuals who are fighters, like myself, will carry on the fight by themselves. But this is like having a muffled voice. It is like trying to understand a person who is just learning English. They and the other person struggle to understand what it is they are trying to effectively communicate.
This is no disrespect to anyone, as English is a very difficult language to learn. This is especially the case with fancy legal terms, legal doctrines, and legal principles to know.
The most common problem with injured workers and representation, or as I say our voice, is that we are injured. As a result, we have lost the capability of earning a living and in every case, with some rare exceptions, we are unable to afford good or even ANY representation. While there are free options, such as legal aid clinics and the Office of the Worker Advisor, thus far, I have found no cases where the legal aid clinics or the Office of the Worker Advisor have represented an injured worker on an application for judicial review. Inevitably, the injured worker is forced to either pay for a lawyer or represent themselves with judicial reviews.
Chen v. WSIAT, 2020 ONSC 2913
This case management conference was heard by His Honour Justice Corbett and was issued on May 8, 2020. His Honour dismissed the application but allowed the injured worker to resubmit a fresh application for judicial review. His Honour’s reasoning was that the application “was much too long at 17 pages”. Also, the injured worker did not list the employer who was the respondent on appeal before the WSIAT.
I have no doubt the injured worker had no idea how to prepare an application for judicial review, or more importantly where to go to learn, or even where to go to get some assistance. Let alone, who to list as the respondents.
I know the difficulties of going to court, firsthand. This is because I had/have the same problems. However, through trial and error I slowly have learned, well sort of learned.
Even now, as I write this, I was before the Court of Appeal for Ontario arguing that by the virtues of the Rule of Law the WSIAT should NOT and can NOT be listed as a respondent. Sadly, the Court of Appeal sees nothing wrong with the WSIAT controlling the entire process of review of its own decisions. Moreover the Court has no issue with the aggressive conduct of the WSIAT, as noted in prior Supreme Court of Canada’s decisions that was of great concern to be monitored by the lower courts.
I also wish to say that while I may raise issue with His Honour Justice Corbett, it is done with the greatest respect. I have appeared before His Honour and have found him to be very honourable judge. The problem is not with His Honour, or any of the judges, but with our justice system and its complete lack of understanding in recognizing and accommodating injured workers. Injured workers who are forced to represent themselves. As many Chief Justices of the Supreme Court of Canada have agreed with,
justice is not a privilege but a right, as such, access to justice must be a RIGHT!
Chen v. WSIAT, 2020 ONSC 4170
This case management conference was heard and issued by His Honour Justice Corbett on July 2, 2020. His Honour acknowledged that the injured worker is self-represented and does not “have the knowledge and training of a lawyer.” However, his Honour allowed their application for judicial review to proceed. His Honour does mention the concerns of the respondent regarding the application.
This raises GREAT concern to me as I have no doubt the WSIAT, in its typical fashion will provide no tolerance, or benefit of the doubt and will demand the application be dismissed. This goes to my greatest concern of why the WSIAT nor the WSIB should be allowed to be part of the appeal or more accurately judicial review process. It is no different than a judge defending their decision on appeal.
“expressed concern about representing themselves”.
This point raises two critical issues. The first being evidence on a review, or for simplistic sake appeal. His Honour was correct in stating that new evidence could not normally be raised on a review/appeal. However, if there was no opportunity at the WSIAT then could be. This is why it is always important to remember that an injured worker can request a reconsideration of the WSIAT decision as many times as they wish. Therefore, His Honour should have dismissed or remitted the matter back to the WSIAT to be reconsidered. Where the evidence could have been obtained. Also, the WSIAT has the lawful authority, like a court, to obtain documents and summon individuals, even if they are not the employer or injured worker.
Chen v. WSIAT, 2020 ONSC 6287
This case management conference was heard and issued by His Honour Justice Corbett on October 16, 2020. Of particular interested noted was that His Honour stated that the WSIAT was required to provide a copy of the case record and a copy of the transcript of the proceedings. This is because most injured workers are in a low-income situation and as such the cost of a transcript for a WSIAT hearing, especially over several days can be cost prohibitive.
Also an interesting point was that His Honour noted the frustration of the injured worker with the delay in the process. The delay issue brings up an important point. Delay was the justification given to injured workers by all of Canada’s courts when injured workers had previously challenged the constitutionally of injured workers being prevented from suing their employers. Injured workers were repeatedly told while being bared form suing their employers is an infringement of the Charter it was justified by the court because injured workers get speedy determination and payment of workers compensation.
Chen v. WSIAT, 2021 ONSC 567
This case management conference was heard and issued by His Honour Justice Corbett on January 14, 2021. This dealt with procedural matter such as timelines when matters were to be completed by. It was interesting to note that the injured worker raised issue with the page limit of 30 pages for their factum, which is their book of legal arguments. The judge did not firmly limit them and understood they would have difficulties meeting that page limit.
Probably one of the most difficult things to do especially in cases with many issues is to limit your arguments. What to leave off and what to include sounds easy on its face but may lose your case.
Chen v. WSIAT, 2021 ONSC 1149
This was the endorsement of a panel of three judges of the court. The endorsement was issued on February 16, 2021. The panel of the court found that the WSIAT decision was reasonable and dismissed the injured worker’s application for judicial review. What was interesting to note in this endorsement was that the injured worker was represented. Unfortunately, there was no endorsement or indication by the court that the lawyer was appointed by the court. Therefore, I am forced to assume the injured worker paid for the lawyer, or the lawyer was a pro bono lawyer.
Justice Denied at Court of Appeal
It is not confirmed but one can assume the case of Chen, Xiaoli et al. v. WSIB et al (M53031) – April 14, 2022 was an appeal by the injured worker to the Court of Appeal. The problem is that the Court of Appeal provides no reason in motions for permission to appeal.
Sadly, I would say this denial of justice is among many countless other decisions, which confirms that the courts continue to be completely intolerant of injured workers.
I was personally interested in this case. This is because I wanted to see if the courts have changed their view on ensuring injured workers were treated fairly and equally before the courts. Especially, those who are first generation Canadians, who struggle with language and knowledge barriers. Would the courts appoint a representative, which is well within their legal authority to do? Moreover, would the courts order the cost to come from the workers compensation system, as it rightful should and not form taxpayers.
Sadly, I do not have an answer. However, I am researching this topic more fully. As a student of labour studies, I believe it would make for a great research paper and maybe something that may help in the future!
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Radzevicius v. WSIAT 2020 - Ontario
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
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
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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City of Toronto v. WSIAT - Ontario - 2023
City of Toronto v. WSIAT 2023 - Ontario
Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Ayoob Beebeejaun, the injured worker, Fire Fighter
Intervenors:
There were no intervenors in this application.
This case is about entitlement to workers compensation benefits when an injured worker has been terminated by the employer.
Mr. Beebeejaun was a worker who worked as a fire fighter for his employer, the City of Toronto. Mr. Beebeejaun was terminated by his employer, the City of Toronto. After his termination, Mr. Beebeejaun sought a claim for workers compensation benefits, based on a medical diagnosis of work-related PTSD. The WSIB initially only granted entitlement for healthcare but denied entitlement for loss of earnings benefits.
A decision by the WSIB, which can only be described as very strange, to say the least.
Mr. Beebeejaun then appealed to the WSIB appeals and then to WSIAT. Eventually, the WSIAT agreed Mr. Beebeejaun was wrongfully terminated based on his PTSD and granted full entitlement to loss of income benefits.
The City of Toronto, being Mr. Beebeejaun’s employer, did not like the WSIAT’s final decision and submitted an application for judicial review.
Interesting as this is exactly what Sir William Meredith wanted to avoid, that employers could use the courts to challenge a workers right to workers compensation. Especially when the court said at para 49 of the decision, that the employer's "submissions amount to an invitation to re-weigh the same evidence that was before the Tribunal."
Mr. Beebeejaun, the injured worker, was the respondent on the application for judicial review. This was in addition to the WSIAT.
This is a strange case in that, in present day court, you will rarely see the WSIAT defend a injured worker!
The Divisional Court heard the application and found the WSIAT’s decision was reasonable and dismissed the application.
I find it interesting how the WSIAT did not seek costs in this application. Costs are what it cost a party to bring the matter to court. Costs are normally awarded to the victory in a case. I have often argued that in cases of judicial review the WSIAT should be prevented from seeking costs against injured workers. Simply because injured workers have a right to be provided representation, by s. 176 of the WSIA.
Mr. Beebeejaun, the injured worker, did seek and was awarded costs int his matter.
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Mihindukulasuriya v WSIAT 2023 - Ontario
Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Aramark Food Services, the employer
Intervenors:
There were no intervenors in this application.
This case is about injured workers being forced to represent themselves in court, when they have a right to be provided representation.
Unfortunately, I am still working on this case note, but check back as I hope to have it done soon!
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Grisales v. Workplace Safety and Insurance Board - Ontario - 2023
Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
Aramark Food Services, the employer
Intervenors:
Ontario Network of Injured Workers Group - ONIWG
This case involved a worker who was challenging the way the WSIB calculates the cost-of-living increase. The importance of this case was that the WSIB claimed the cost-of-living letter was an information letter and not a decision letter. The Divisional Court disagreed and agreed the WSIB’s decision to do that was unreasonable.
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City of Toronto v WSIAT and Beebeejaun - Ontario - 2023
Respondents:
The Workplace Safety and Insurance Appeals Tribunal – WSIAT - Ontario’s workers compensation appeals Tribunal.
City of Toronto, the employer, made an application and was dimissed by the court.
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