Court of Appeal for Ontario

Date: 2018-02-06 Docket: C63503 Judges: Laskin, Huscroft and Paciocco JJ.A.

Between

Paul Taylor Plaintiff (Appellant)

and

Workplace Safety & Insurance Board – WSIB and Workplace Safety & Insurance Appeals Tribunal - WSIAT Defendants (Respondents)

Counsel

Paul Taylor, acting in person

Jean-Denis Bélec and Jeffrey Clarke, for the respondent WSIB

Andrew Lokan and Debra McKenna, for the respondent WSIAT

Heard: December 18, 2017

On appeal from: the order of Justice David Price of the Superior Court of Justice, dated February 22, 2017, with reasons reported at 2017 ONSC 1223.

Reasons for Decision

A. Introduction

[1] In 1997, the appellant, Paul Taylor, was injured on the job while unloading a large shipment of goods from a tractor trailer truck. Since then, for the past 20 years, he has been litigating over his Workplace Safety & Insurance Board benefits. He has had numerous hearings before the Board, and brought various appeals before the Workplace Safety & Insurance Appeals Tribunal. Some of his claims have been accepted; some have not.

[2] In February 2014, Taylor started an action against both the Board and the Tribunal. In his amended statement of claim, he sought "compensatory damages" of $1,710,455, broken down into various categories of benefits, as well as punitive damages of $15 million.

[3] Both the Board and the Tribunal brought motions to dismiss Taylor's claim for lack of jurisdiction and alternatively, to strike his pleadings on the ground that they disclosed no reasonable cause of action. In lengthy reasons, the motion judge granted their motions. The main basis for his decision was that Ontario's Superior Court of Justice does not have jurisdiction to grant relief against the respondents in a civil action. Relief against the Board and the Tribunal must be sought on judicial review.

[4] Taylor appeals the motion judge's decision. He raises two issues:

1. Did the motion judge err in dismissing Taylor's claim for lack of jurisdiction?

2. Did the motion judge err either by striking Taylor's pleadings as failing to disclose a reasonable cause of action for "bad faith" or misfeasance in public office, or by refusing to grant Taylor leave to amend his statement of claim?

[5] We dismiss the appeal on both issues.

B. Discussion

(1) Did the motion judge err in dismissing Taylor's claim for lack of jurisdiction?

[6] The motion judge set out the particulars of Taylor's claim against the Board and the Tribunal for damages for loss of benefits and for punitive damages. The essence of Taylor's complaint against the Board is that the Board treated him unfairly and denied him the benefits and treatment to which he was entitled. The essence of Taylor's complaint against the Tribunal is that the Tribunal did not treat him fairly in the hearing process, that the Tribunal's decision was wrong and should be reversed, and that the Tribunal and its members committed various torts against him.

[7] In substance, these complaints are about the decisions made and the process used by the Tribunal and Board in determining Taylor's entitlement to benefits. The motion judge held that the court cannot grant the relief Taylor seeks because, under s. 123 of Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, the jurisdiction to grant this relief falls under the exclusive jurisdiction of the Board and the Tribunal. Section 123 provides, in relevant part:

123 (1) The Appeals Tribunal has exclusive jurisdiction to hear and decide,

(a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;

(3) On an appeal, the Appeals Tribunal may confirm, vary or reverse the decision of the Board.

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court. [Emphasis added.]

[8] We agree with the motion judge. We also agree with the motion judge that a litigant cannot circumvent the statutory scheme for granting benefits for workplace injuries by alleging, as Taylor has done, bad faith and then coupling this allegation with a damages claim. This court has held that circumventing the statutory scheme for the determination of benefits by a civil action amounts to an abuse of process. See: Pagourov v. Science Application International Corp., 2007 ONCA 745. Pagourov holds that neither the Superior Court nor this court has jurisdiction over Taylor's claim for loss of benefits or for punitive damages.

[9] To avoid the effect of this court's decision in Pagourov, Taylor relies on this court's recent decision in Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654. There, this court held that the motion judge had erred in striking out a claim in a class action. The claim in question alleged that the Board had committed the torts of misfeasance in public office and negligence by secretly adopting a new policy on pre-existing injuries. The Board submitted that the appeal was a collateral attack on its decision regarding the appellant's entitlement to benefits. But at para. 51 of his reasons, Lauwers J.A. rejected the Board's argument. He distinguished the case before him, which involved a policy decision of the Board, from cases that involve individual claims. The latter are in essence an attack on the Board's or Tribunal's exclusive jurisdiction over benefits:

I do not take that view of the appellant's claims. He is not complaining about a specific decision regarding his personal entitlement, as occurred in, for example, Aird v. WSIB, Aird v. WSIAT, 2010 ONSC 3600, at paras. 14-15, and Pagourov v. Science Applications International Corporation, 2007 ONCA 745, at para. 12. Nor do I see his claims as a collateral attack to circumvent the WSIB as an expert tribunal, as described in Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 71 and R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706. Nor is this pleading linked to the specific circumstances of the appellant's complaint; it challenges the legality of the WSIB's actions across a category of benefits and a class of persons. I would see this class action as categorically different, not as a collateral attack on the WSIB's specific determination of the appellant's entitlement. [Emphasis added.]

As Taylor's case is properly characterized as involving an individual claim about his personal entitlement, and not a general policy decision of the Board, Castrillo does not assist him.

[10] Thus, we decline to give effect to Taylor's appeal on this first issue.

(2) Did the motion judge err either by striking Taylor's pleadings as failing to disclose a reasonable cause of action for "bad faith" or misfeasance in public office, or by refusing to grant Taylor leave to amend his statement of claim?

[11] In his pleadings, Taylor asserts a wide range of complaints against the Board and Tribunal, which broadly speaking fall into two categories. The first category relates to allegations about how these bodies decided Taylor's benefit claims. The second category relates specifically to certain conduct and words of a Tribunal member on an appeal hearing before the Tribunal in 2007. The motion judge struck Taylor's amended statement of claim in its entirety, as the allegations it contained did not amount to torts recognized in law.

[12] Additionally, at the hearing of the motions, Taylor alleged that the bad faith conduct of the Board and Tribunal described in his amended statement of claim amounted to the tort of misfeasance in public office. Taylor did not plead this cause of action in his amended statement of claim, but he raised it before the motion judge. And the motion judge dismissed the claim for misfeasance in public office on two grounds: it was not tenable in law because, even in his factum, Taylor had not pleaded the elements of a cause of action for the tort; and it had been brought beyond the two year limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, and so was statute-barred. The motion judge also refused to grant Taylor leave to amend his amended statement of claim to assert this cause of action because even if corrected, the pleadings would still fail to disclose a reasonable cause of action.

[13] On appeal, Taylor argues in substance that his amended statement of claim appropriately pleads the "tort of bad faith" and, when read generously, also discloses a cause of action for misfeasance in public office. He contends that the allegations in his pleadings make out the tort of misfeasance in public office on either of two grounds: the bad faith denial of his claims for benefits; and the improper comments and conduct of a Tribunal member at a 2007 hearing.

[14] Alternatively, Taylor asks this court for leave to amend his pleadings to assert this cause of action. We do not agree with Taylor's arguments, and decline to grant him leave to amend.

[15] Dealing first with Taylor's assertion that he appropriately pleaded the "tort of bad faith", we observe that a government official's bad faith conduct is not independently actionable. Our law does not recognize a stand-alone action for bad faith: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 78.

[16] Second, the motion judge was correct to hold that Taylor's amended statement of claim does not assert a cause of action for the tort of misfeasance in public office. This tort redresses unlawful conduct in the exercise of public functions. The Supreme Court discussed the tort's constituent elements in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. Although the Supreme Court distinguished between two categories of the tort representing two different ways in which a public officer can commit the tort, it held that both categories have the same two basic elements: first, a "public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer"; and second, "the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff." See: Odhavji, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 17-23. Even read generously, Taylor's pleadings do not satisfy either element of the tort and therefore do not disclose a reasonable cause of action for misfeasance in public office.

[17] Taylor's pleadings repeatedly reference bad faith, and although bad faith may go towards demonstrating that a government official's conduct was unlawful, bad faith alone is not sufficient to make out the tort: Odhavji, at para. 28. Taylor's pleadings do not satisfy the other components of the tort: that the unlawful conduct alleged was deliberate and carried out by a specific, named official; or that any such conduct was knowingly unlawful and specifically intended to harm Taylor.

[18] Further, to the extent Taylor's claim relates to his dissatisfaction with how the Board and Tribunal handled his benefits claims, the factual underpinnings necessary to make out the tort of misfeasance in public office are wholly deficient. Nowhere in his very detailed amended statement of claim does Taylor set out the material facts necessary to support either element of the tort. Rather, Taylor's amended statement of claim is replete with generalized complaints about the Board and Tribunal, none of which are actionable.

[19] Finally, Taylor's allegation concerning the conduct and comments of a Tribunal member in 2007 cannot give rise to a reasonable cause of action for misfeasance in public office. In pursuing this part of his claim, Taylor relies entirely on a recording he surreptitiously and improperly made of the Tribunal's deliberations on one of his appeals. But as the motion judge noted, admitting that recording would violate the principle of deliberative secrecy, which is necessary to preserve the independence of decision-makers. See: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, 282 D.L.R. (4th) 538, at para. 14.

[20] The remaining question is whether we should grant Taylor leave to further amend his pleadings to assert a claim for misfeasance in public office. As mentioned, the motion judge declined to grant leave, and we agree with his decision.

[21] Taylor's alleged claim is rooted in events that took place a decade ago. He has had ample opportunity to put forward amendments to support his claim, and yet has failed to do so. Even in this court and in the face of the motion judge's decision, he did not provide us with proposed amendments to his pleadings. Finality in civil litigation is an important principle, and this principle would be undermined by now granting Taylor leave to amend.

[22] Thus, it is not necessary to decide whether the motion judge was correct in holding that Taylor's claim would be barred by the two year limitation period in the Limitations Act. We do note, however, that neither defendant has delivered a statement of defence. This court has held consistently that only in rare cases, if any, will we entertain a motion to dismiss an action as statute barred under the Limitations Act in the absence of a statement of defence. See Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750, at paras. 42-46.

[23] For the above reasons we decline to give effect to Taylor's appeal on the second issue.

C. Conclusion

[24] Taylor's appeal is dismissed, with costs to the Board in the amount of $2,000 and to the Tribunal in the amount of $2,500, each inclusive of disbursements and HST.

"John Laskin J.A."

"Grant Huscroft J.A."

"David M. Paciocco J.A."