CAN YOU APPEAL A DECISION OF A WORKERS COMPENSATION APPEALS TRIBUNAL TO THE COURTS?

CAN YOU APPEAL A DECISION OF
A WORKERS COMPENSATION APPEALS TRIBUNAL 

TO THE COURTS?

My round-about opinion of the recently released decision by the Supreme Court of Canada to revise the review of administrative decisions, in their decision of
 Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.

Technically this may sound simple, and easy to answer. Unfortunately, it is not. Canada’s workers compensation system is provincial/territorial. This means the laws vary from one region to the next. You’d be shock how much they vary! For example, some provinces allow for an appeal to the provincial/territorial Courts of Appeal, while others only allow Judicial Review. Then sadly some, like Ontario, who is the alleged birthplace of workers compensation,

do not allow an appeal or Judicial Review, within its law.

So, your best option is to read what the workers compensation law says in the province or territory where you are from, where you were injured, and where your employer is based out, if they are different. For example, in a hypothetical case, what would make things even more fun for an injured worker to appeal after getting a tribunal decision, is when a worker works in multiple provinces/territories, and/or lives in one and works in another. You would be surprised how often this actually happens!

To start with, just so you know there are different types of Judicial Review, with different standards or tests to be met. There is Injunction, which is used to stop a government agency and/or officer from acting. There is Mandamus, which is used to compel a government agency and/or officer to act. There is also Prohibition and Declaration. Finally, there is Certiorari, which is when a court reviews a lower court, board, tribunal, government agency, and/or government officer’s decision.  

To make things simple, if that is possible with workers compensation, I will focus on Ontario. It is a province with the strictest, or as I like to say, “one of the most fascist systems of workers compensation laws in Canada!” It is also sadly, the province where I live and have been fighting for more than twenty years.

I currently have two applications for leave to appeal before the Supreme Court of Canada. So, I am almost at the end of my fight. Well, then there is a plea to the International Labour Congress – ILC, which is a division of the United Nations and can only be done once all avenues of appeal have been exhausted. Unfortunately, only my first application to the Supreme court of Canada, has been inputted into the Supreme Court of Canada’s database, which is Paul Taylor v. Workplace Safety & Insurance Board – WSIB, et al.  This application, which I prepared on my own – ugh! Dealt with the right of an injured worker to sue a  workers compensation board – WCB and/or a workers compensation appeals tribunal – WCAT, when they abuse their public office and/or positions as public officers.

My second application to the Supreme Court of Canada involves the right of an injured worker to have speedy determination of decisions regarding workers compensation benefits. This is widely understood in common-law across Canada and I was just trying to enforce this right. This is what judges tell injured workers when they want to sue their employers for their work injuries. The judges say yes, our Charter rights are violated by the various workers compensation laws, which restrict our right to sue our employers. However, and don’t yell at me! then the judges invoke s. 1 of the Charter. Stating that yeah well, some injured workers may lose, but most get speedy determination and payment of benefits, so it is justified in a democratic society.

YES, I KNOW, BULLSHIT RIGHT!

Section 1 of the Charter is something that courts can invoke, and regularly do when a Charter violation is found to be valid, but the courts don’t want to give you the violation. They can say yeah but the Charter violation is acceptable under section 1. Also, section 33 of the Charter, can be invoked by the same way by a legislature or the Parliament of Canada. That was what Dawg Ford invoked when he reduced the size of the councilors in the City of Toronto. Honestly, everyone I talked to said if he did it after the election no one would have cared. However, it was clear it was a personal vendetta and improperly used the s.33. Not surprisingly, the Court of Appeal for Ontario agreed with Dawg Ford.

Well I used the court’s argument, that we get speedy determination and payment of benefits, against the courts, or so I thought. I forgot they make the rules! In my particular case, I had asked the WSIB (Ontario’s workers compensation board) to cover the cost of over the counter pain medications and topical pain cremes. Not surprisingly they said no. I knew the last time I went to the WSIAT it took ten years – I can’t wait that long! No one can or should! So, I brought an Application for Judicial – writ of mandamus, to ask the court to order the board and/or tribunal to hurry up and schedule a hearing, hold the hearing, and render a decision. Ironically, the WSIB made things even more fun for me. They had sent me a letter to get up to date medical information from my doctor. First time in over twenty years. So, I did, exactly as the letter said, I took the letter to my doctor and asked her to prepare a report and send it directly to the WSIB. Now I assumed the doctor sent the report in. One would think the WSIB would call me, weeks before and say hey we didn’t get the report. Nope! Instead they cancelled my medical benefits. Therefore, this made my Application for Judicial – writ of mandamus urgent and of concern. When it went to court, even the judge noted it was now a great concern. Unfortunately, the judge blindly listened to the WSIB lawyer who said that it is a WSIB policy that injured workers are required to submit the medical directly to the WSIB and medical reviews are done every two years. Ironically, the lawyer never provided any documented proof or reference any section of law. Not surprisingly, I lost and again lost at the Court of Appeal for Ontario. So, as I said that has gone to the Supreme Court of Canada and I am just waiting on it to be inputted into the Supreme Court of Canada’s database. I have repeatedly asked the WSIB for the policy or procedure but have never received anything aside from in short form we can do whatever we want!

Well that said, onto the current topic of Judicial Review – Certiorari in Ontario…

Many people have been intentionally and deceptively misled to believe that they have no right of appeal or even a right of Judicial Review, after a tribunal decision is made. This is especially the case in Ontario, with the Workplace Safety & Insurance Appeals Tribunal – WSIAT. Where in their website they state no one has the right of appeal and they even write it in such a way to influence people to believe they have no right of anything after a WSIAT decision. Including a right to bring an application for Judicial Review, when they state “There is no right of appeal from a decision of the Workplace Safety & Insurance Appeals Tribunal.”

I argue that in many ways, an application to the courts for Judicial Review – writ of certiorari, is in effect an appeal to the courts. In fact, the WSIB and WSIAT lawyers actually made that statement in court. The WSIAT on their webpage goes, so far as to brag and boast, that it is IMPOSSIBLE for an injured worker to get a judicial review of their decision, when the WSIAT arrogantly states that “WSIAT’s recognized expertise is a major reason why in its twenty-eight year history WSIAT has only had one decision overturned by the Courts on judicial review.”

First, to clarify you DO have a right to file an application for Judicial Review, even if the law says you do not. This was confirmed in the Supreme Court of Canada’s decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, where at paragraph 24 the Supreme Court stated “judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely”

That said, I will now discuss the options available to an injured worker in Ontario after receiving a WSIAT decision.

First, the injured worker should file a request for a reconsideration of the first WSIAT decision. When you do, and MOST IMPORTANTLY, do not just restate the things you or your representative argued previously before the WSIAT. The key issue with reconsiderations and appeals is that many people miss the important fact that you are arguing why you believe the decision is wrong. Prove this by stating facts, which were missed or misstated. Also reference law, and policy which was overlooked or ignored. Also reference evidence which was missed or not provided. This way you may find you are more successful, but sadly as a Self-represented Litigant – SRL, you will find success very rare.

As, the WSIAT has a hatred towards injured workers who represent themselves!
Sadly, this is something I can easily prove in my own experience – another BLOG!

Then after receiving the reconsideration decision or not, if you decided not to do a reconsideration. Then if you believe the decision(s) are wrong, then you could consider filing an application for Judicial Review. The first issue in preparing your arguments is to determine which standard of review the court should be using. This will help you understand how you will convince the court the decision should be changed.

Here is where I start talking about the Supreme Court of Canada’s latest decision, regarding the standard the court is to use when reviewing administrative decisions (reviewing workers compensation appeals tribunal decisions) in Vavilov.

Prior to the Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 decision, which was just released this past December, I will call this the Vavilov decision, for simplicity. Then prior to the Vavilov decision there was the Dunsmuir v. New Brunswick 2008 SCC 9 decision, again for simplicity I will call this the Dunsmuir decision. Prior to the Dunsmuir decision there was other cases such as Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 .

So, to explain how the standard of review works with a Judicial Review – certiorari, I am going to discuss the standard prior to the Dunsmuir decision. So, prior to the Dunsmuir decision there were three standards of review set by the Supreme Court of Canada that was used by courts when reviewing decisions of administrative tribunals. Then I will discuss the Dunsmuir decision and finally the Vavilov decision.

 Prior to Dunsmuir Decision

The Supreme Court set three standards, which were Correctness, Unreasonable, and Patently Unreasonable. The basis of deciding which standard the reviewing court would use created much discussion, argument, and wasted resources.

This was only recently, we hope, resolved in the Vavilov decision.

Starting with the correctness standard. This is the least restrictive standard where the court reviews the tribunal’s decision to determine if the decision is right or wrong. If it is wrong, the matter is not referred to the tribunal, instead the court makes its own decision in place of the tribunal’s decision. Prior to the Vavilov decision this would only occur when the standard of correctness was implied by the legislation. For example, if the legislation made mention of a right to Judicial Review or a right to an appeal. T the correctness standard would be used by the reviewing court. If the legislation barred an appeal and a judicial review, then this standard would not be used.

This has been recently changed in the Vavilov decision, which I will discuss later.

The next standard was the reasonableness standard. This is where the reviewing court does not look at whether the decision was right or wrong, but instead whether the decision was made reasonably. This, The Supreme Court justified using by claiming it was to protect the intent of the legislature.

The next standard was patently unreasonable. So, it is when the decision, yes you guess it, may have been wrong, but must be patently unreasonable in order for the court to consider reviewing the tribunal’s decision.

Guess where the review of WSIAT decisions stood in this list? Yes, you got it, patently unreasonable. Many including myself ask why such a high standard of review. Especially when I look at the true purpose of workers compensation system, to financial protect injured worker, but more importantly to financial protect taxpayers, from caring for injured workers.

I have no answer, or explanation as to why the court reasoned this!  

The Dunsmuir decision

Ok so that was the three standards, which were in place until the Dunsmuir decision. This was when the Supreme Court looked at the Judicial Review standard and simply said, hey it is very confusing having three standards of review with two standards of reasonableness. Instead let’s just have one reasonableness standard. So, the Supreme Court folded the two reasonableness standards into one. That being just reasonableness. They left the correctness standard alone. So, after Dunsmuir decision, we were left with two standards of review

Correctness and Reasonableness.   

As I mentioned earlier the standard of correctness was if the decision was right or wrong and the reasonableness standard had a higher threshold of the decisions could be wrong but were not reviewed by the courts as they were reasonable.    

Now, before I move onto the final decision of the Vavilov decision, I thought you might need a laugh! Ok, so even though the Supreme Court of Canada now said the there are only two standards of review in Canada for courts to use.

Guess what the Court of Appeal for Ontario said for judicial review of decisions from the WSIAT?

Yeah that’s nice, but here in Ontario we will stick with the patently unreasonable standard. Unfortunately, I don’t have the decision right now, but I can find it if anyone was seriously interested in it.

The Vavilov decision

Ok, now that I have explained the history and hopefully you are still with me here. The Supreme Court again looked at the standard of review. They still use the two standards of review being reasonableness and correctness standards. They did explain each is to be decided on a case by case basis. They also said that the default standard is reasonableness. So, first I will explain the new correctness standard and hopefully I do so correctly, no pun intended! and you hopefully understand it.

So, a person arguing an application for judicial review wants to try and get the court to review on the correctness standard. This is because the correctness standard has a much lower threshold than that of the reasonableness standard. Being that whether the decision was right or wrong.  

The first consideration is to look at the legislation to determine, if the law provides for a right of appeal and/or an application for Judicial Review. If this is the case, then the correctness standard would be used. Now, at this point this is where the Vavilov decision differs from the Dunsmuir decision. The Supreme Court added that:

“respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.” (para 53)

Now it is easy for one to say oh yeah, my decision meets all three of those. So, I am good, I can do correctness standard. I wish it was that easy! In reality, you have to prove each one and there are different tests in doing so. Like for example, if you are raising a Charter argument. That the decision violated a section of the Charter, then there is a procedure or test for arguing that.

My point is that the Supreme Court’s decision to do this, gives people who are making applications for Judicial Review a bit better chance of success.

Now in addition to adding the added criteria for the correctness standard, the Supreme Court also clearly defined what is the reasonableness standard. That in order for a decision to be reasonable, a decision must be Justified, Intelligible, and transparent. I won’t get too deep into the legal meaning of these words. However, suffice to say if the decision contains “a fundamental gap or reveals that the decision is based on an unreasonable chain of analysis” “or if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise” (para 104), then as the Supreme Court states, the decision would be unreasonable.

Additionally individuals should be aware that in cases where the correctness standard is used, the Supreme Court has made it clear the reviewing court will substitute its decision in place of the tribunal’s decision in order to prevent a back and forth effect between the tribunal and the court. However, in matters involving reasonableness the court would normally refer the matter back to the tribunal with its reasons. The court can, in some cases, make its own decision in place of the tribunal’s decision.

Well, hopefully I have explained the process of Judicial Review, specifically Certiorari correctly and most importantly you understand what I have explained here. I will now provide my thoughts on the whole Judicial Review standard – correctness and reasonableness.

My thoughts on why the reasonableness standard is wrong and illegal.

A wrong decision is not just. This is because it is wrong even it is reasonable or not. Saying a decision is reasonable does not make it right. It still leaves a wrong and ultimately an unjust decision. If the justice system knowingly allows a wrong decision, to stand that is known to be unjust then this would and does bring the administration of justice into disrepute. The justice system allowing wrong decisions to stand, is the same as allowing illegal evidence to be admitted in a criminal trial, which would not be normally admitted. The admission of illegal evidence is unjust and would mean the justice system has fallen into disrepute as stated in s. 24(2) of the Charter. Therefore, in my view, I believe that the Supreme Court in continuing to allow a standard of review that is lower than correctness has allowed the justice system to fall into disrepute. Moreover, the action is in violation of the Rule of Law, is in violation of the principles of Natural Justice, and is in violation of the Constitution.

That said, I want to now discuss the standard for workers compensation appeals, specifically in Ontario. This is where the standard of review has been previously set by the Ontario Court of Appeal as patently unreasonableness. Without repeating what I just mentioned about the use of reasonableness standard and how that that standard should no longer be used. I will argue that a new standard should be employed for workers compensation decisions, which has a lower standard than that of correctness. This is because unlike any other administrative decision process, the workers compensation is one of the few where the outcome bares a direct financial impact on taxpayers in Ontario and Canada. This is because of the following reasons.

First, I submit that workers compensation is privately funded and when it works properly, it does not cost taxpayers. However, when injured workers are denied their legitimate claims to workers compensation benefits it ends up costing taxpayers. This is because injured workers are then forced onto taxpayer funded social programs. Social programs such as, income replacement, housing assistance programs, education assistance programs, health insurance.

I can easily prove that legitimately denied and delayed claims for workers compensation benefits in Ontario, costs Ontario taxpayers approximately $34 million per year. This is because on average each month more than 4,500 injured workers are forced onto taxpayer funded income replacement programs known as Ontario Works and Ontario Disability Support Program. Therefore, on my first point, on its own, one would think that this one proven cost to Ontario taxpayers, should provide more than enough justification for the Supreme Court and lower courts to provide a lower standard than the correctness standard for judicial review of workers compensation tribunal decisions. Ironically, as I said earlier, the Ontario Court of Appeal went the other way, with a very high standard for injured workers to meet for reviewing WSIAT decisions.

Secondly, I argue the intent of the Ontario legislature is contrary to what the court has interpreted. I have argued with several legal scholars including law professors, who I have had the honour of speaking with. I argue to them that in Canada’s justice system, when decision makers are deciding if the evidence meets the facts of the case there are three standards. The first is commonly known in the criminal justice system as beyond a reasonable doubt. Simply, this means that if you have been charged with a criminal offence, then the Crown prosecutor must prove beyond a reasonable doubt, with the evidence, that you committed the offence. This is the highest standard and for obvious reasons to protect the innocent from being wrongly jailed. The next standard is the standard used in most other matters like civil actions, which is balance of probabilities. This simply means for example, in a civil court claim, you would have to prove to the judge on a balance of probabilities that the evidence proves the other party committed a wrong against you. So, the evidence proves that more than 50% you were wronged by the other party, so to speak.

Now in dealing with workers compensation matters, this is where well everyone disagrees with me ☹! You see, I say that the standard of decision making is NOT balance of probabilities. I believe the standard is lower, which is as stated in law, as benefit of the doubt. This is a standard of equal or less than 50%. The Workplace Safety & Insurance Act states at s. 119(2) “If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.”  This is referred to by the WSIB Policy 11-01-13 as Benefit of the Doubt. Therefore, in understanding the standard one would conclude that the intent of the legislature was not to be more restrictive with workers compensation matters, but less restrictive, as the decision-making standard establishes.

Third, the original purpose to create the workers compensation system in Ontario back in 1914, was first to protect injured workers from the financial hardships of their work injuries. The second and more import reason was that it was realized that if injured workers were not properly cared for, then taxpayers would have to bear the financial burden of caring for injured workers.

Ironically, it seems to me today this has happened!     

   

Therefore, the standard in reviewing decision involving workers compensation matters should be lower than the correctness standard set by the Supreme Court.

Well, I hope that you enjoyed this blog and especially my explanations of the process of Judicial Review and how it directly impacts workers compensation matters.

PLEASE let me know what you think, make a comment, my ego really really really needs it LOL!

No seriously, it does!

This blog is not legal advice, but my personal opinions on my experiences and research I have conducted. It is no substitute for proper legal advice by a lawyer or a paralegal.

Functional Overlay or Faking!

What is Functional Overlay   

Have you ever seen the term Functional Overlay in your WCB/WSIB/WorkSafe file and wonder what it meant?

Well overtime I wondered as well, and eventually, I learned to perform research in my many years of schooling. I found a shocking discovery that Functional Overlay is code for Malingering. Malingering means simple to exaggerate or fake an injury. What is interesting is that it is diagnosed like a real medical condition, yet according to several scholarly scientific research papers it is not a recognized medical condition by any medical association.

Click here to see the paper which states “Functional overlay is not a recognized psychiatric diagnosis.”

In other words, it is a made-up medical diagnosis to deny legitimate claims for workers compensation benefits, which is based on an allegation the individual is faking. What is even more troubling is that the doctors who make these diagnoses are usually medical doctors and not psychologists or psychiatrists. It is ironic as it is like a person being referred to a foot doctor for an ear problem.

Ironically mine was diagnosed by an orthopedic shoulder surgeon. Dr. Richard Holtby out of Holland Centre of the Sunnybrook Health Sciences located at 43 Wellesley street in Toronto. Interestingly enough, he never even discussed or explained it to me. This is but one of many major problems with Independent Medical Examiners (IMEs). IMEs are doctors paid by private insurance companies and workers compensation boards to provide medical proof an individual is not injured or not as severely injured, when they are. 

In most cases the IME's diagnosis and prognosis are contrary to the family doctor and many many other medical specialists the individual has seen. 

This is such a problem one doctor who was fired on the direction of the WSIB. The Doctor had refused to change her diagnosis to a less severe rating. In response the doctor filed a civil lawsuit against her employer and the WSIB. Click here to read the article. 

In my case, dad the, quack of a doctor,  bothered to talk to me, like a real doctor, he would have learned that my problems were from the extreme heavy and repetitive physical work I performed. You see every day I physically unloaded a 53-foot trailer with product loaded from floor to ceiling, and back to front. I was lifting varying weights from 1lb to 150lbs or more. Over time this takes a huge toll on the body. It is

now more commonly known as a repetitive strain injury. Another connection to look for is when the WCB/WSIB/WorkSafe claims a diagnosis of Degenerative Disc Disease – DDD is used. The WCB/WSIB/WorkSafe will claim it is an age-related condition, when in fact it is work-related condition. Again, scientific medical research confirms the blatant and deliberate misuse of medical information by workers compensation boards to deny legitimate claims for compensations.

Click here to see the medical report  

The paper uses an example of a nurse performing heavy repetitive physical work and being intentionally and incorrectly diagnosed with age-related DDD. The paper explains that in a normal person one would not see DDD until well into their 70’s, unless they were performign heavy repetivei physcial work - at work.

I was 29 years old when I was diagnosed by the WSIB appeals officer with age-related DDD. Ultimately, this is without question defamation of my character. So, to prove my point I submitted a freedom of information request for the WSIB’s meaning and origins of this diagnostic term they used to claim it is age-related when I know it is not. You see I had to do a freedom of information request as I had previously made a request to the WSIB Business Rules department and also sent a copy to WSIB legal counsel Mr. Belec, in June of 2019. Ironically my request was ignored. Well they can not ignore my request now.

I will update this post when I have more information from my freedom of information request…