Injured@Work - March 2021

Update on my Application for Judicial Review

Presently, there was a motion hearing to a panel of three judges of the court for March 8, 2021. However, the case management judge adjourned that motion hearing as I was not ready to proceed. Now, I have until the end of March 2021 to file my materials with the court. Afterwhich a new motion hearing will be scheduled. That too hopefully will be done by ZOOM. This way anyone can participant as a member of the public gallery. I will let everyone know in my April Newsletter of the updated status of my application for judicial review with the courts.
I have explained in detail my arguments and I hope you learn from it. I believe the arguments will be very helpful to other injured workers and their advocates.

I had filed a motion to a panel of, usually three judges, with the Divisional Court to have a decision of a single judge set aside. The grounds of my motion are that when the judge dismissed my application for judicial review, they committed an error of law. This error of law was when the Judge granted the tribunal standing in a review of its own decision. The Judge also committed an error of law by failing to apply the correct test for dismissing an appeal/application for delay.

significance of my application
As I had previously mentioned there is some significance with my application for judicial review. This is because workers compensation boards (“WCBs”) and/or workers compensation appeals tribunals (“WCATs”) should not have standing as a party in appeals/judicial reviews. Also, that delay should never be a reason to dismiss an injured worker’s appeal/judicial review.

My first point is that, in Ontario, the WSIAT, claims they have a right to be a party in an application for judicial review. A judcial review is in effect an appeal to the court. I argue that the WSIAT will have the ability to defend their own decision in the appeal or review. This is is a violation of the Rule of Law, being a biased decision maker the WSIAT and the reviewing courts. I prove this by confirming in a review of previous judicial reviews applications before the courts only two applications have ever been successfully reviewed in the WSIAT’s 40-year history. Confirming that any attempt at doing a judicial review would be futile. This is also confirmed in the WSIAT’s annual reports such as this statement taken from page 20 of the 2015 WSIAT’s annual report, which states that:
       “The Tribunal has compiled an impressive record on judicial review over its 30-year history.
        The Tribunal has released over 69,000 decisions, but only once has a final decision of a court quashed a Tribunal decision.”

Therefore, any reasonable person would feel that to bring an application for judicial review of a WSIAT decision to the court, knowing that any application for judicial review will fail, as it would be completley futile.
Futility is a key point that the Supreme Court of Canada established what defines a biased decision maker in their decision ofIdziak v. Canada (Minister of Justice)where the Supreme Court of Canada stated that:
       “that any decision of the decision maker prejudged the matter
        to such an extent that any representations to the contrary would be futile!”

I also argue that the Supreme Court of Canada missed a key point in its previous decisions of granting status to tribunals. This is because there are two types of administrative boards and tribunals. Those administrative boards and tribunals that issue decisions in the public best interest. A good example is the Ontario Energy Board (“OEB”). The OEB mandate is to issue decisions that protect the public’s best interest regarding the maintain of fair energy pricing. So, it is reasonable for this board to issue biased decisions and can be biased. However, in matters where a tribunal/board is resolving a dispute between two parties, like that of a court. Then in that case the board/tribunal should be given no deference. The distinction of the two types of boards/tribunals can be easily made using the Baker test established by the Supreme Court of Canada in their decision of Baker v. Canada (Minister of Citizenship and Immigration) where the court set the test for procedural fairness that a board/tribunal is to have. This test compares it to a court or not. In the case of workers compensation boards and tribunals the Baker test confirms that the workers compensation boards and tribunals are much like that of a court.

I also argue that granting standing of workers compensation boards and tribunals is an unfair imbalance of power. This is opposite to the reasoning of the courts granting the boards/tribunals standing. This is because often injured workers are self-represented. Whereas the boards/tribunals are well represented. This creates a clear imbalance of power on the part of the boards and/or tribunals. This is confirmed in the unrealistic success rate of Ontario’s WSIAT, as previously mentioned.

I would also argue that granting standing in workers compensation matters is contrary to the intentions of the Supreme Court of Canada. This is because when an injured worker loses, it harms society. This is because in most cases, taxpayers are then forced to care for injured workers. This is because workers compensation systems are solely and completely funded through privately paid employer premiums. However, when legitimate claims for workers compensation are denied, injured workers are then forced to use taxpayer funded social programs. This was proven, in Ontario, in data I obtained from the Ministry responsible for social assistance income programs. I learned, on average each month, there are over 4,000 injured workers on these programs. This conservatively costs Ontario taxpayers more then $30 million per year. This is conservative as it does not include the many other taxpayer funded social programs injured workers are forced to use. So, the number is much higher!

Therefore, workers compensation boards and tribunals should never be given standing in appeals/applications of judicial review of their own decisions.

My second arguement is that appeals/judicial review should never be dismissed based on length of delay for injured worker matters. This is because the decision makers are not considering the widely accepted standard for granting of extension of time. The standard includes:
  – the length of the delay and any explanation for the delay;
  – the intent of the party to bring the appeal/judicial review within the required time;
  – the justice or merit of the case; and
  – any prejudice to the other parties.

This standard or test is referenced in the Court of Appeal for Ontario’s decision at para 1 of Leighton v. Best where the Court of Appeal stated the test for dismissing an appeal or application for judicial for delay. The test was again referenced by the Court of Appeal in the decision at para 26 of Howard v. Martin.

Length of Delay and Any Explanation for the Delay:
This is self-explanatory. The shorter the length of delay the less likely the decision maker will need to look to the other parts of the test and grant the extension of time. Alternatively, the longer the delay the more the decision maker MUST look to the other issues to decide whether to dismiss the appeal/judicial review for delay or not.

The first is the status of the individual being if they are low-income and lack the resources to bring the appeal/application within the required time. For example, if a party is of low-income and does not have the resources to hire a lawyer. They will be required to learn the legal process and procedures, as well as prepare their own case, to bring their appeal/judicial review on their own. Additionally, if they are self represented and made mistakes because they were self-represented this must not be held against them. This is confirmed in the Canadian Judicial Council’s Principles on Self-represented Litigants and Accused Persons, which was adopted into common law by the Supreme Court of Canada in their decision of Pintea v. Johns.

While some may argue the CJC Principles would not apply to administrative boards and tribunals, I would argue in fact they do under the argue if they are a “Court of Competent Jurisdiction,” which means they can hear Charter arguments. Then they are a Court and subject to the principles. Not to mention it would be in the interest of justice to do the right thing.
This coudl also be used to explain any delay, as well as intent.

The second point one may make is if the individual has disabilities. Then this will likely hinder their ability to form the intent to bring their appeal/judicial review within the stipulated time. For example, the disability can be a psychological one where the individual suffers from depression or another condition. It can also be physical where the individual suffers from severe chronic pain. These factors would also support the first point if the individual were also self represented. As it is a disability, a request should be clearly made to the decision maker for accommodation in the form of an extension of time under the Human Rights Code and/or the Charter s. 15.

Merits or Justice of the Case:
This is where the decision maker considers that if the appeal/judicial review were heard, the decision would likely be overturned. This is not a deep dive into the appeal/judicial review, but the decision maker must make a cursory review of the case to determine if there is merit or justice in granting the extension for delay.
This means the person arguing in favour must make these points for the decision maker to consider them. The most common argument would be a specific example of how the lower decision maker committed an error of law.
For example, in Ontario, the law requires decision makers to apply Board policy when rendering decisions. This means they should cite the policy and quote the applicable section. I have found very few decisions do this. Instead, the decision maker makes up their own policy and/or guidelines.

Any Prejudice to Other Parties:
Often decision makers when reviewing a request for delay will look at the length of delay and dismiss the appeal/judicial review based solely on the delay. Claiming that the delay itself caused prejudice to the other parties. This is an incorrect and “Unreasonable Decision” . I argue this by stating that for a decision maker to use delay as the grounds for dismissing an appeal/application for judicial review is committing a logical fallacy, of circular reasoning. This is where the decision maker uses the conclusion “delay” as its reason “delay” for their conclusion. Hence the term circular. As you go around and around, in a circular, in their reasoning to justify their conclusion. The decision maker may argue “no”, their reason is prejudice. However, the decision maker stated the prejudice was determined by delay, so delay was the real reason and the conclusion.
The unreasonable part is defined in the Supreme Court of Canada’s recent decision at para 104 of Canada v. Vavilov, where the Supreme Court defined that a decision is unreasonable if the decision “exhibit clear logical fallacies such as circular reasoning”.

The Court of Appeal for Ontario stated the standard or test for determining prejudice in their decision at para 49 to 50 of “Carioca's Import and Export Inc. v. Canadian Pacific Railway”
This was also confirmed by the Supreme Court of Canada in their decision at para 101 of Blencoe v. British Columbia (Human Rights Commission)

That the mere passage of time is not a measure of whether an appeal/application should be dismissed because of prejudice to the other parties. That prejudice is to be determined based on the facts of the case. Those facts being:
is the record of the case available, specifically all the referenced evidence is available;
is there a transcript and/or an audio recording of the proceeding available;
if there were witnesses at the original proceeding, would they be available; and
the conduct of the other parties, specifically did they act in good faith, or did they act in bad faith, which is defined as “to act with knowing, intentional deception”.

Additionally, it should also be noted that when an appeal/judicial review of an injured worker is dismissed for delay it not only harms the injured worker, their family, but most importantly it harms taxpayers. As previously discussed, this is because taxpayers will be forced to care for the injured workers.

As you can see by my two arguments here, my case is complex. Also, consideration must be made for making Charter arguments and the specific test for each section of the Charter that I will be arguing that was infringed.