SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: BERNARD JOHN CHAMBERS, WENDY CHAMBERS and JESSICA CHAMBERS, BERNARD CHAMBERS Junior and NICOLE CHAMBERS, by their Litigation Guardian, WENDY CHAMBERS Applicants
- and -
WORKPLACE SAFETY and INSURANCE APPEALS TRIBUNAL, DARREN S. DROSDOWECH, PETERBOROUGH CIVIC HOSPITAL, C. VOLLERING and JANE DOE, SARA LAVENDER and SIR SANDFORD FLEMING COLLEGE Respondents
- and -
DARREN S. DROSDOWECH Counter-Applicant
BEFORE: CHADWICK, HOWDEN & CAPUTO JJ.
COUNSEL: Jack Futerman, for the Applicants D.S. Revington, for the Respondent, Workplace Safety and Insurance Appeals Tribunal Eva Frank, for the Respondents, Peterborough Civic Hospital, Vollering, Lavender and Sir Sandford Fleming College Valerie D. Wise, for respondent and counter-applicant, Darren S. Drosdowech
HEARD: November 26, 2002
E N D O R S E M E N T
1Bernard Chambers suffered a work injury in 1996. He was deemed entitled to receive and continues to receive worker's compensation benefits. Following surgery in 1997 performed by Dr. Drosdowech on the injured knee, Mr. Chambers and his family commenced a civil action in negligence against all of the respondents except the Tribunal. The respondents applied to the Tribunal for a determination whether the applicants' right to commence or continue the civil action was taken away by the Workers' Compensation Act, R.S.O. 1990, c. W.11, as amended. It is from the decision of the Tribunal that the applications for judicial review by the applicant and the counter-applicant arise.
2In brief, the Tribunal made the following determinations:
i) the right of action of the applicant, Bernard J. Chambers, against the hospital, C. Vollering and S. Lavender was taken away by reason of the provisions of Part I, in particular s. 10(9), these parties being employees of a Schedule 1 employer or an employer in Schedule 1;
ii) the right of action against Dr. Drosdowech and Sir Sandford Fleming College (the non-Schedule 1 parties) was not taken away or limited by Part 1 of the Act; and,
iii) in the action against Drosdowech and the College, no recovery may occur for the portion of loss or damage caused by the fault or negligence of the hospital, Vollering and/or Lavender.
3The Tribunal left the fate of the derivative claims by Mr. Chambers' family under the Family Law Act for later determination by a court.
4In the course of its reasons for decision, the Tribunal dealt with the "hands-off" position of the Workplace Safety and Insurance Board (formerly the Workers Compensation Board) in respect of the applicants' action. Mr. Chambers elected to and continues to receive benefits. The Board waived any participation in the action and any right to claim recovery of benefits paid. The Tribunal found that ss. 10(4) and (5) did not operate to bar the applicant worker's right to preserve the action in these circumstances; the right to sue is that of the worker and the Board's decision to decline to participate in the action or any possible recovery does not extinguish the right of action against the doctor or the College.
5The applicants' position was that the Tribunal lacked jurisdiction to make the decision it did. We have considered the several submissions of the applicants' counsel in that regard and are fully satisfied that there was no failure of jurisdiction under the pre-1997 Act and the transitional and other provisions of the Workplace Safety and Insurance Act, S.O. 1997, ch. 16.
6The position of the respondent/counter-applicant, Dr. Drosdowech, was that the Tribunal exceeded its statutory mandate and 'legislated' the result by failing to recognize the Board's decision not to activate its right of subrogation against the counter-applicant as extinguishing the worker's right to sue. The counter-applicant asserts that Part 1 of the Act does not permit a worker who has elected to claim and receive compensation benefits also to maintain a right of action which is statutorily subrogated to the Board as dominus litus. In addition, Dr. Drosdowech also claims that whether the standard of review is correctness (on a 'jurisdictional limit' analysis using the 'functional and pragmatic' approach) or patently unreasonable, the Tribunal's decision should be quashed.
7We have considered the submissions on the pragmatic and functional approach by counsel for the counter-applicant and the Tribunal. We do not accept the counter-applicant's conclusion. This Tribunal's decisions are protected by a full privative clause enacted by the Legislature. Matters within its exclusive statutory jurisdiction to hear and decide expressly include determinations of whether rights of action of workers are taken away or not. In addition, both s. 17 of the pre-1997 Act and s. 31 of the present Act contain strong 'finality' statements applying to the very type of decision before us. The Tribunal is recognized by appellate authorities as a specialized Tribunal possessing expertise in issues relating to workplace issues, insurance law, and the effect of provisions of its constituent statute on a worker's right to sue.
8As well, in considering the purpose of the Act and the nature of the problem before the Tribunal, we hold that the legislative intent, recognized judicially over the years, is for decisions involving the taking away or not of rights of action in the context of workers compensation legislation to be determined by this Tribunal, unless it makes a decision that is patently unreasonable. Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1999), 2 S.C.R. 982; Pasiechnyk v. Saskatchewan Workers Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890 at para. 17; Re: Kuntz and Workers' Compensation Board (1986), 1986 2615 (ON CA), 56 O.R. (2d) 497 (C.A.), at p. 504; Meyer and McDermott v. Waycon International Trucks Ltd., Rentway Canada Ltd. and Workers' Compensation Board (Ont.) 1988, 38 O.A.C. 398 (C.A.) at p. 399; and, French v. Livingston Cartage (January 29, 1992), (Ont. Div. Ct.), (unreported).
9Not only do we find that the decision in question is not patently unreasonable, a careful reading shows it to be carefully and thoughtfully reasoned to a conclusion that is within its legislated mandate. It recognizes the judicial reality that the worker has a beneficial interest in the cause of action which allegedly caused injury, the nature of subrogation rights and the practical reality of cost exposure should the Board activate its statutory right of subrogation.
10The Tribunal's findings in this regard are:
The submission of the applicants is that the Board cannot assign its cause of action to the worker. However, in my view, the arrangements made between the Board and the worker do not constitute an assignment of the cause of action back to the worker. The cause of action was at all times the worker's cause of action, although the subrogation of that action to the Board meant that the Board had the right to control the action. In Toronto Railway (Toronto Railway Co. v. Hutton (1919), 1919 534 (SCC), 50 D.L.R. 785 (S.C.C.)), the Supreme Court of Canada stated: 'The respondent's cause of action is not divested; it exists still in him, but, if enforced by him, it must be for the benefit of the Board if he has signed an election'.
I see nothing in the Act that precludes the Board from waiving receipt of monies owed to it if the Board has determined the exposure to costs involved in proceeding in the action outweighs the potential benefit.
It is also relevant to note that the fact that the worker's cause of action is subrogated to the Board does not mean that the worker no longer has a beneficial interest in the action. Both the Board and the worker are properly considered to have a beneficial interest in the action. The Board has the statutory right to recover the amount of benefits paid, and the worker has the statutory right to recover any surplus awarded in the Court action beyond the amounts owed to the Board. Therefore, if the Board does take charge of the subrogated action, it does so not only on its own behalf, but also as a fiduciary for the worker with respect to the worker's remaining beneficial interest. In deciding how the action is to proceed, the Board must fairly consider both interests.
The Board may reasonably determine that its own best interest is to decline to participate in the action, including declining its right to a share of any award, because of the potential exposure for costs. However, in making this determination, it must also fairly take into consideration the interest of a worker who wishes to proceed. . . .
I also note that my jurisdiction under section 17 extends only to a determination of whether the cause of action is taken away, or whether the right to recover damages or contribution is limited by the Act. As I have found, above, the provisions of the Act do not take away the cause of action against the Doctor or the College. Further, for the reasons set out above, the cause of action is neither extinguished nor transferred because of the worker's election to take benefits, and the provisions of section 10 do not limit the worker's right to recover damages, contribution or indemnity as the result of an election.
11The Tribunal's conclusion is informed by a complex mix of statutory concepts and entitlements with practical and policy factors which withstand a reasonably probing critique. It confirms the legislative intent that the decision is one properly left to the specialized Tribunal appointed to do so within the workers compensation scheme, unless its decision is patently unreasonable. The Tribunal's decision in this case is not a patently unreasonable one and is within its jurisdiction to make.
12Accordingly, the application and counter-application for judicial review are dismissed.
CHADWICK J.
HOWDEN J.
CAPUTO J.
DATE: 20021129