My Application for Judcial Review - Certiorari - August 2020
I have set up this page to provide information regarding my application for judicial review with the courts regarding the Workplace Safety & Insurance Appeals Tribunal – decisions 691/05 and 691/05R.If you would like to learn more about My Story regarding those decisions of the WSIAT,
you can by going to the webpage I setup to talk about My Story with the WSIAT.
Please note I am still working on that section of the website, as My Story is a massive undertaking to put online,
but I hope to have it completed soon.
An application for judicial review allows an individual to have the courts hold a government officer and/or a government agency accountable for the wrongs they do to people. There are several different types of judicial review, but this page, this part of my story is specifically about my judicial review certiorari. This judicial review that being certiorari, is the power of the courts to review a decision of a government officer and/or agency. The reviewing court can uphold the decision, send it back for it to be redone by the decision maker,
or the court can make a decision in its place.
In this specific case I am appealing or asking for a judicial review of the Workplace Safety & Insurance Appeals Tribunal (Ontario’s Workers Compensation Appeals tribunal) decisions specifically decision 691/05 and 691/05R.
The right to bring an application for judicial review is constitutional protected under s. 96 of the Constitution. This is according to numerous decisions of the Supreme Court of Canada. Including their most recent decision of
Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, where the Supreme Court stated at paragraph 24, stated that:
“because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely”.
I actually find this somewhat ironic, as even the current workers compensation law in Ontario is contradictory, as it states under section 118(3) of the Workplace Safety and Insurance Actthat:
“An action or decision of the Board under this Act is final and is not open to question or review in a court.”
That is for decisions of the Workplace Safety & Insurance Board – WSIB
The law goes onto state under section 123(4) of the Workplace Safety and Insurance Actthat:
“An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.”
It also states under section 123(5) of the Workplace Safety and Insurance Actthat:
“No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.”
So, I think you are as confused as I am, but then I think well maybe
the Ontario Legislature never got around to amending that section of law.
Here comes the funny part….
Since the passing of the decision by the Supreme Court of Canada in Dunsmuir v. New Brunswick 2008 SCC 9, that is when the last time that I can recall the Supreme Court of Canada mentioned judicial review as protected under s. 96 of the Constitution, the Ontario Legislature has amended the Workplace Safety & Insurance Act some 43 times in the past twelve years since the Dunsmuir decision.
What is even more interesting or funny, is that the Supreme Court of Canada’s directive that judicial review is protected under s. 96 of the Constitution goes back into the early 1980s. This is well before the enactment of the Workplace Safety & Insurance Act that came into effect on January 1, 1998.
This leaves one with a simple question of why would the Ontario Legislature pass a law that they know is unconstitutional?
Moreover, why would the Ontario Legislature allow such an unconstitutional law to stand unamended?
The courts and the Ontario Legislature will likely say that anyone would know it is not constitutionally valid and would ignore it. They would also argue that it is there for a reason to signal to the courts the Legislature’s higher preference of tribunal treatment.
I have two concerns with this:
The first is that as a self-represented litigant I am not as knowledgeable or experienced as an experienced lawyer. I mean, I am learning, but this intentional deception causes me and has caused me to make seriously time consuming and costly mistakes, which I have been routinely blamed for by the courts.
The second is that while it may not be misleading to lawyers and the like, it is confusing and misleading to the average person. Especially those who cannot afford a lawyer and may look at that, as I first did and feel oh well cannot do judicial review.
I also want to add that while I cannot prove it now, but I strongly remember the WSIB and the WSIAT, as well as many others telling me I cannot legally do judicial review and referencing that section of law.
Therefore, I believe, in all fairness, that ANY application for judicial review that has been recently filed for a decision that is more than six months old should be allowed regardless of timeframe.
However, sadly, it seems to me, that when it comes to workers compensation, fairness and justice seem not to exist!
Below I have told My Story of my Application for Judicial Review I have also provided an index for this page, for ease of navigation.
I have included all documents that have been filed with the court. This is so you can see for yourself what is involved with filing an application for judicial review of a tribunal decision.
As you will see it is a massive undertaking, but as most injured workers have been placed into poverty and there is no legal aid for this, one has no choice but to represent themselves.
I only wish you and hope you better success than I have had thus far!
You will notice My Story on this webpage is not finished yet, that is because it is currently still before the courts.
Page Index
Current Issues on this Case
My Application for Judicial Review to the Ontario Superior Court of Justice – Divisional Court
Case Conference - September 8, 2020
WSIAT’s Motion Materials for the WSIAT Motion
My Submissions in Response to WSIAT's Motion Materials
WSIAT Motion Hearing of October 5, 2020 - Heard Virtually by Zoom
My Motion to a Panel of the Divisional Court
to Set Aside the Judge's Decision
Case Conference - November 23, 2020
Case Conference - January 19, 2021
Case Conference - March 2, 2021
My Motion Materials for My Motion to a Panel of the Divisional Court
WSIAT’s Submissions in Response to My Motion Materials
Motion Hearing of March 8, 2021 - Adjourned
Motion Hearing of ______ 2021 - TBD
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Current Issues on this Case
My Motion to a Panel of the Divisional Court that was been scheduled for March 8,2021 has been adjourned by the Court.This was because I did not have all my materials ready for the Court. This should be understandable as the case is very complex.
- I am challenging the law which allows the WSIAT (Ontario’s WCAT) to stand in a judicial review/appeal of its own decision that it is a violation of numerous Charter Rights.
- I am also challenging the decision to allow the WSIAT to stand in a judicial review/appeal of its own decision that it is a violation of numerous Charter Rights.
- I am also challenging the Court’s test to dismiss an application for judicial review/appeal because of delay is an error of law and violation of the Charter of Rights.
- I am also challenging the Court’s decision to dismiss my application for judicial review/appeal because of delay is an error of law and violation of the Charter of Rights.
Instead, the Judge gave me until the end of March 2021 to prepare and file my materials. After which a case conference will be set to set the date of the motion hearing.
While not exactly on time, I did finish my filings on April 1, 2021. Yes, I get the irony, I am the fool for fighting for sooo long, but I do not care anymore!
I then served and filed my materials with the court. In my submissions, I did provide medical evidence to the court of my need for accommodation not because I am self represented, but also because I have numerous disabilities and requirement of accommodations in the form of need much more time to finish things.
I will again update this section once a case conference has been done and a new motion date has been scheduled.
Also I have been really busy, but when I get a chance, I will be posting all my motion materials that I filed with the court for everyone to view, of course with my personal information redacted.
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My Application for Judcial Review
to the Ontario Superior Court of Justice - Divisional Court
So, on July 29, 22020 I had filed a second request for reconsideration to the WSIAT. Within my submission I had given the WSIAT (Ontario’s Workers Compensation Appeals Tribunal), until August 14, 2020 to respond to my request, due to the urgent nature of the claim.
If you have not read my story on that part and would like to click here to go to my story on my second reconsideration request at the WSIAT.
After giving the WSIAT until August 14, 2020, I contacted the WSIAT and confirmed they received my submissions but would not deal with it for several months or longer. I also confirmed they do not have any policy or procedure for dealing with urgent matters - Injured workers are told to JUST WAIT! This is regardless of the seriousness of their situation.
On the afternoon of August 14, 2020 I filed my Application with the Divisional Court.
You can download a copy of my application below.
(click the image to download
a pdf copy of my application)
Who is the Respondent in an Application for Judicial Review?
Something you will notice is that in my application I did not list the WSIAT, as others have done in the past.
I provide two simple arguments in support of my justification.
1. To grant the WSIAT standing, as a party in an application for judicial review, would be a violation of the Charter under s. 2, 7, 12, and 15.
2. To grant the WSIAT standing would also be a violation of the principles of the Rule of Law and Natural Justice/Procedural Fairness.
I will speak more on these two arguments later in my story.
Application Brought to Divisional Court Also, a second change was that I filed my application with the Divisional Court as opposed the Superior Court of Justice. My reasoning was that there were new procedures, due to COVID-19, which I was led to believe would allow the Divisional Court to hear applications on an urgent basis. I was terribly mistaken and now pay the price for it. As you will learn later in my story.
Case Management Hearing
On August 31, 2020 I received an e-mail from the Court stating that a judge requests a teleconference for September 8, 2020. “The purpose of this teleconference is to determine the scheduling of this matter and whether it will proceed electronically.” To me I understood this as simply, are you available on this date or that date and are you capable of video conferencing using Zoom. BOY was I wrong! I want to make clear, that this is not the fault of anyone. It is something that just happens.
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Case Conference - September 8, 2020
I attended the teleconference and right off the judge said that he was under the impression the WSIAT wants a motion to dismiss my application and to have standing in the matter. The Judge explain to me that the WSIAT has a lawful right to be listed as a party and I would have to justify this at the motion hearing. I explained to Judge I understood, and I was still opposed to the WSIAT to be listed as a party. I also explained to the Judge I was not prepared to make any legal arguments as I was under the impression it was just to set a hearing date and confirm video conferencing. I also confirmed with the judge that if I were successful at the motion the matter would come back to him to be scheduled for an application hearing.
Shortly after the hearing the Judge issued his endorsement which is below for you to see.
(Click the image to download a pdf copy of
His Honour, Justice Corbett’s endorsement)
So, afterwards I started thinking and realized that my application was not in fact being treated as an urgent application under s. 6(2) of the Ontario Judicial Review Procedures Act.
I then wrote an e-mail to the Court expressing my concerns that my application was not being treated as urgent. The court responded that an additional case conference was being scheduled for September 11, 2020.
September 11, 2020 – Teleconference
At this teleconference, the judge had explained to me that I could not abandon my application and pursue it in Superior Court, as I suggested I would do, due to the urgent nature of my application. His Honour made clear if I did, he would declare me a vexatious litigant. This, his Honour explained would mean before I brought any further actions in Court, I would first have to seek consent of the Court. His Honour also explained that my application could not be dealt with any quicker, as it is simply not ready. His Honour did suggest I could bring a motion before the court for interim relief. However, this is normally done to stop a sudden action, like the cutting down of a precious tree, before the matter can be heard. Because I was not already receiving benefits, it would be impossible for the court to grant such a request.
Now in the case of when the WSIB unlawfully suspended my medical benefits then I could have filed for interim relief.
Something for me and you to think about for future matters, as sadly there will be future matters where injured workers have had their benefits wrongly suspended and thye will need urgnet assitance!
Know this is NOT the same as getting benefits becuase of urgency.
The judge did confirm with me if I had any other issues to disucss them then. I said no I did not, at that time.
However, I realized afterwards I will need to bring a motion myself for:
- an order granting an extension to bring my application for judicial review, under s. 5(2) of the Judicial Review Procedures Act
- an order granting me to file lengthy factums for my motion and my application.
- an order removing the reports, dated August 6 & 7, 1998, of a Dr. Holtby (a WSIB Doctor) from the WSIAT case record.
I am still working on the Motion, which is partly why I did not bring it up to the Judge. Also, another major problem being a self-represented person does tend to get flustered and confused. Causing them to forget important issues. This amplified by my depression, anxiety, and my attention deficit disorder. All of which I will explain to the court so they do not angry with me, which would be understandable under normal circumstances. I wills ay the judge has been extremely patient and understanding with me.
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WSIAT Motion Materials for the WSIAT Motion
Below I have provided a copy of the WSIAT Factum, which is a book containing all their legal arguments. Also, a copy of their Motion Record, which contains all the materials they are relying in their motion and their Factum.
I am presently preparing my response to the WSIAT and will upload it here.
When you review the factum of the WSIAT, you will see how the WSIAT is focused on only two things.
The first is the alleged delay of me bringing my application, which is their argument for abuse of process and the basis for bringing their motion.
I actually found this quite strange. This is because prior to July 28, 2020, it would be correct. The respondent to an application for judicial review was able to bring a motion to dismiss the application. However, on July 28, 2020, the law, in Ontario changed on Judicial Review. The new law placed a more restrictive time limit of 30 days, and also allowed applicants to make a motion to a judge to have an extension of time, if needed.
To be clear my application was submitted to the Court on August 14, 2020.
The second is that if I am successful on this motion, I am not allowed to proceed, until I have paid all the costs orders to the WSIB and the WSIAT in another separate matter.
When you read the arguments in the WSIAT factum for this it gets quite personal and nasty, but sadly that is to be expected. This is because they are expecting people to snap and as a result lose their case. Sadly, this is something I am very use to, as most injured workers, how we are treated right after our work injury by our employer, by the WSIB and by the WSIAT. Like we are common criminals stealing from them when all we did, as injured workers, was get hurt!
(Click the image to download a pdf
copy of the WSIAT Factum - 0.2 meg.)
(Click the image to download a pdf
copy of the WSIAT Motion Record - 15.3 meg.)
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My Submissions in Response to WSIAT's Motion Materials
I have completed my legal arguements and my supporting documents book, commonly known as a a record book, or in my case a responding motion record book.
Click the image to download
a PDF copy of my factum
Click the image to download
a PDF copy of my responding record - 90 meg file size
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WSIAT Motion Hearing of October 5, 2020 - Heard Virtually by Zoom
His Honour set a date of October 5, 2020 for the WSIAT’s motion to be heard by Zoom video conference.
If you would like to observe the motion hearing as a member of the public, you can contact the Court and ask for permission to gain access to observe the hearing.
You can do this by e-mailing the court at scj-csj.divcourtmail@ontario.ca
Just mention that you would like to observe the hearing in the matter of Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 5414, which is scheduled for a motion hearing on October 5, 2020.
Here I will place the outcome of the hearing. Honestly I am very skeptical, but one can hope!
Motion Decision
As I predicted, the outcome of the Motion was not a surprise to me, the Judge granted the WSIAT's motion in full. The judge granted the WSIAT full status in the application, ignored my arguments of constitutional violations and violations of the Rule of Law. The judge not surprisingly dismissed my application solely on the grounds of time, like I was doing nothing for the past twelve years.I have posted the decision below where you can read the PDF copy. Once I calm down, I will post my comments here in response to the decision.
Interestingly enough, the judge, did not mention, in her decision, my argument for regarding the lack of impartiality with the Judicial Review process. I said that in a review of the case law I found only one decision in the past 23 years where a decision of the WSIAT was reversed. Leaving a reasonable person to conclude either the WSIAT is perfect or they are having an undue influence on the Court.
I have already sent an inquiry to the Divisional Court as to the next steps for appealing this decision.
Click the image to download
a PDF copy of of the judge's decision
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My Motion to a Panel of the Divisional Court
to Set Aside the Judge's Decision
In response to Justice Sachs decision, I have prepared, served, and filed my Motion to be heard by a Panel of the Divisional Court to set aside a decision of a single sitting judge of the Divisional Court. I have provided my Motion below.
I will say the Judge’s decision was very disturbing to read. Among other things, in that the Court’s test on prejudice was solely on delay. This is commonly known as circular reasoning and NOT the correct test, as I state in my Motion.
The corretc test for delay is if it can be proven evidence is lost, witness memories are gone, and no audio recording exists, which none of which can and was proven on the part of the WSIAT.
Additionally, in my factum I argued that there was the behavior of the parties which ought to have been considered when looking at the issue of prejudice and it was not.
My other concern is how the court allowed the WSIAT standing.
To put it another way… the court allowed the WSIAT, in effect a court in of itself, to act as a party on an appeal of its own decision.
This is likely why, in Ontario for example, in the history of the WSIAT and the former WCAT that
only TWO applications for judicial review were ever granted!
This concerns me for many reasons, but to state the obvious it confirms a lack of impartiality on the part of the WSIAT and on the part of the reviewing court.
I am also concerned by this, as it seems to me that the Legislatures, at least in Ontario thus far, have indirectly circumvented the Supreme Court of Canada’s long standing position that a Legislature cannot prevent a “Superior Court” (Court of Queen’s Bench, or Supreme Court) from reviewing a decision of government and/or a government agency. In this case a worker’s compensation appeals tribunal. The Legislature has done this by providing the tribunal the ability to have standing (be a party) in its own decision being reviewed (appealed).
While the court when granting the WSIAT standing, did provide reference to a prior Supreme Court of Canada decision, I note that the court took the Supreme Court of Canada’s decision out of context. Asserting that standing was justified as no other party participated and the WSIAT needed to be involved so “the court can deal with this dispute in a fair and informed manner”.
The issue of standing (acting as a party) of tribunals in for their own decisions, I believe has been intentionally abused by the tribunals, like that of the WSIAT. This is for the tribunals to ensure their track record remains almost perfect. In doing so creating a massive injustice in Canada. As I quoted to the court, that in Ontario, in the history of the WSIAT and its former Ontario WCAT, there have only EVER been two successful applications for judicial review. There was a third but that was against the WSIB (Ontario WCB).
That is a time span of almost 40 years! This no doubt encompasses hundreds, if not thousands of applications for judicial review. That is a track record much better than that of any Provincial or Territorial Appellate Court.
This makes me very concerned. This is becuase comapratively speakign and from a purely logical sense, the WSIAT has members who are not nor have they ever been judges, most WSIAT panel members in fact are not lawyers or even paralegals. Yet Provincial/Territorial Courts of Appeal appoint judges from the rooster of federally appointed judges. These judges have been appointed judges for many years. In order for a person to be appointed a judge they must first have been a practicing lawyer for many years. To become a lawyer requires four years University and two years of law school plus a period of internship.
So, as you can see, and I hope you can, something is rotten in the state of Denmark!
My Motion to a Panel of Divisional Court
Click the image to download
a PDF copy of my Notice of Motion to the Court
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Case Conference - November 23, 2020
I received notification of a case conference and attended via telephone.The Judge set the date of March 8, 2021 for my Motion to be heard by a Panel of the Divisional Court.
Case Conference Endorsement – November 23, 2020
Click the image to download
a PDF copy of the Judge's Endorsement
The case conference judge has set March 8, 2021, for my Motion to be heard by a Panel of the Divisional Court.
I will be adding my motion materials along with the WSIAT's repsonse materials below, when they are completed.
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Case Conference - January 19, 2021
I received notification of a case conference and attended via telephone.The Judge after conversation learned that I was not prepared to proceed and an agreement was reached to amend the timetable for the filing of the materials.
Case Conference Endorsement – January 19, 2021
Click the image to download
a PDF copy of the Judge's Endorsement
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Case Conference - March 3, 2021
I received notification of a case conference and attended via telephone.The Judge after conversation learned that I was not prepared to proceed on March 2, 2021. The Judge then agreed to adjourn the motion until my materials were ready.
Case Conference Endorsement – March 2, 2021
Click the image to download
a PDF copy of the Judge's Endorsement
The case conference judge has adjourned the motion scheduled for March 8, 2021.
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My Motion Materials for My Motion to a Panel of the Divisional Court
I am still working on my motion materials, but when they are complete I will post them here.
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WSIAT’s Submissions in Response to My Motion Materials
Once I have received the motion materials from the WSIAT I will post them here.
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Motion Hearing of March 8, 2021 - Adjourned
This motion was adjourned by the judge in the last case conference of March 2, 2021. My apologies I have not had the opportunity yet to post the case conference decision, but I will soon.
Simply put, I did not have my motion materials ready for the motion hearing so the judge adjourned.
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Motion Hearing of November 18, 2021 - Heard Virtually by Zoom
Decision of the Panel of the Divisional Court
Click the image to download
a PDF copy of the Panel's Decision
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Appeal to Court of Appeal for Ontario
As noted in the Panel of the Divisional Court’s decision above, my motion as dismissed.My next step is to file Leave or ask for permission of the Court of Appeal to appeal the Divisional Court’s decision. I have created a separate section of the website for all my matters that have been heard at the Court of Appeal.
Click here to go to the Court of Appeal for Ontario part of My Story.
I would also like to note that the information I am providing on this page, while the matter is currently before the courts, is a matter of public record and is not privileged or part of any "sealed record". However, if any information is mistakenly placed here, please e-mail me and I will remove it at the request of the Court,
until the matter is disposed of by the Court.
I do wish to point out that it is my not position or intent to embarrass or disrespect the Court in anyway,
but to further advance the cause of justice by showing people how our justice system works.
If you have any concerns about the content on this page you can e-mail me at fightwcb@gmail.com
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