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