Ontario Superior Court of Justice My Judicial Review-Certiorari - July 2013
This part of my story is a continuation from my story with the Workplace Safety & Insurance Appeals Tribunal – WSIAT (Ontario’s workers compensation appeals tribunal).
Brief Recap
I will provide a brief recap of what transpired at the WSIAT first and then I will explain my first actions with the Ontario Superior Court.
If you missed my story with the WSIAT you can click here to go back and read that first.
I had appealed some five appeal decisions of the Workplace Safety & Insurance Board – WSIB (Ontario’s workers compensation board) to the WSIAT. A hearing was scheduled for January 10, 2007 and was adjourned and reconvened on July 3, 4, & 5, 2007. After the hearing, on February 11, 2008, some seven months after the hearing, the WSIAT panel members issued their decision 691/05.
WSIAT decision 691/05, can be found on CanLII website by clicking here
After I received the decision, a lot transpired between February 11, 2008, the release of the decision and when I finally sent in a request for reconsideration. One major issue was that the WSIAT Panel Members who heard my appeal had made numerous disparaging and prejudicial comments. As a result, I had filed a complaint with the Human Rights Commission. The complaint was delayed due to the transition to the Human Rights Tribunal. Ultimately, they did nothing. I then after a lengthy period, received a response in late 2012, from the Chair of the WSIAT. They had granted my request for a new Panel or Vice-Chair to hear my request for reconsideration.
I had submitted my lengthy request with additional supporting evidence confirming my need for accommodations due to my various disabilities.
On June 10, 2013, the WSIAT made their decision and released WSIAT decision 691/05R on June 13, 2013. They denied my request for reconsideration.
WSIAT decision 691/05R, can be found on CanLII website by clicking here
Application for Judicial Review – Certiorari July 2013
So, shortly after receiving the WSIAT Decision 691/05R, I prepared an application for Judicial Review, I filed the application with the Court in Toronto.
At the time, and even now, I had no clue what I was doing! It may seem like I know what I am doing, but I do not! Just looking at the application you can see many mistakes I made. The title had to be wrote in. I had to write in the address of the court. I was missing the back sheet and others.
People often make fun of lawyers, but we need to remember they have to attend university for four years, then law school for another two and perform an internship. This is how they obtain the knowledge need to do the work they do. This does not even consider the years of experience as well. However, what drove me was the fact I knew I was being cheated and intentionally at that and I was not going to allow them to get away with it!
On July 4, 2013, I filed my application with the court and served the listed parties.
(click the image to download
a pdf copy of the application)
Interesting point on applications for Judicial Review, at least in Ontario.
I had listed the WSIAT, and the WSIB as parties to my application, but in fact they are like a court and should not be a party, under the Rule of Law – bias decision maker.
To learn more about the Rule of Law in Canada and what is happening click here.
Another interesting point on Judcial Review in Ontario
Currently, in Onatrio, the Workplace Safety & Insurance Act prevents the court from judicially reviewing a decision of the WSIB under s. 118(3)(4) or a court from judicially reviewing a decision of the WSIAT, under s. 123(4)(5)
(Click the hypperlinks numbers to be taken to the current law to see for yourself)
Here is where things get very interesting. The Supreme Court of Canada has declared that the Superior Court (Supreme, or Queens bench) is a court of inherent authority, which has been empowered by s. 96 of the Constitution Act of 1867. As such, the jurisdiction of the Superior Court cannot be ousted by a Provincial/Territorial Legislature. This was recently confirmed in the Supreme Court of Canada’s decision of Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, at paragraph 24. Where the Supreme Court of Canada reference past decisions including Dunsmuir v. New Brunswick 2008 SCC 9, at paragraph 31. Also, Crevier v. A.G. (Québec) et al. 1981 SCC 2.
My point to referencing the past decisions of the Supreme Court of Canada, as they did, is to let you know that the courts authority to perform judicial review is nothing new and has been well established since 1981. What is even more interesting is that in 1997, when the Ontario Legislature enacted a complete new revamped workers compensation act, they never made the change to allow for judicial review. In fact, since the Supreme Court of Canada’s Decision of Dunsmuir, in 2008, the Ontario Legislature has amended the law some 32 times, with the most recent version being July 1, 2020.
Well… back to my Application for Judicial Review
After I had served my application on the WSIAT, I received a letter from their counsel advising me that I had filed my application for judicial review in the wrong court.
(click the image to download
a pdf copy of the letter)
Like I said I am not an expert, nor do I know anything regarding this, but I am learning and boy have I learned a lot!
So, I did as was advised by the WSIAT counsel and I abandoned my application for judicial review.
(click the image to download
a pdf copy of the Notice)
After abandoning my application for judicial review, I figured I best start performing some deep research. I mean I had learned some of the rules, but there is a heck of a lot to know and learn. Remember what I said earlier lawyers go to University for fours years then two years of law school for a reason.
In my process of learning I realized that when injured workers, like myself, have been denied their legitimate claim for workers compensation, we lose more than just their income. We lose our home, we lose our car, we lose everything.
I also learned that judicial review will only restore an injured worker’s benefits and will not allow an injured worker to recover their losses as a direct result of their loses, form them not having the benefits. This is because generally, an application for judicial review will only send the matter back to the WSIAT to be re-decided and I knew they would not be honest, because they were not on two previous occasions.
I also learned that WSIAT counsel had intentionally misled me to the law. As I explain you will understand. In the letter the, the WSIAT counsel stated that:
“Under the Judicial Review Procedure Act, applications for Judicial Review are brought to the Superior Court of Justice – Divisional, and not to the Superior Court of Justice. You have therefore issued your Notice of Application out of the wrong Court.”
Now when one reviews the Judicial Review Procedure Act you will find that the WSIAT was right, but they were also WRONG.
“Application to Divisional Court
6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court. R.S.O. 1990, c. J.1, s. 6 (1).
Application to judge of Superior Court of Justice
(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
So, as you can see for yourself, that YES, an application can be brough to the Superior Court of Justice. The only requirement is that it is “one of urgency”.
Now here is where I, disagree with the WSIAT. You see in their mind there are NEVER no urgent matters ever. This is proven as the WSIB and the WSIAT do NOT have any policy for dealing with urgent matters. Instead injured workers are told to “just wait”. This is regardless how serious an injured worker's situation is!
Aside from learning how injured wokrers are forced into poverty, which is so the WSIB and the WSIAT can save employers money, I did also learn that bringing a civil lawsuit for damages, against both the WSIB and the WSIAT, would restore my loss of benefits, my other losses as a result of not having the benefits and it would also rightly punish the WSIB and the WSIAT for their intentional wrong actions.
So I decided to file a lawsuit in civil court and is the next action in Superior Court.
Click here to move to my next appearance in Civil Court February 20, 2014
