COURT FILE NO.: 735/02

DATE: 20031110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcrae, dunnet and jennings j.

B E T W E E N:

D & W FORWARDERS INC.

Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Respondent

A. Irvin Schein and Stephen C. Nadler, for the Applicant

John C. Murray and Jeff Oliver, for the Respondent

HEARD: November 10, 2003

DUNNET J.: (Orally)

1This is an application for judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal in which the request of the applicant to be reclassified from the trucking group rate to the manufacturing rate applicable to IKO Industries Inc., a company that owns 50% of the shares of the applicant company, was denied.

2The issue is whether the tribunal committed reviewable error by deciding that the applicant and IKO were not “associated” within the meaning of s. 11 of O. Reg. 175/98 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A.

3The tribunal is a specialized body protected by a strong privative clause and is entitled to curial deference in the interpretation of its constituent statute and assessment of the facts. See Blue Line Taxi Co. v. Deek, [2002] O.J. No. 2036 (Div. Ct.). Assessment and classification are at the heart of the tribunal’s role and purpose. See Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890.

4In addition, under s. 123(1)(b) of the Act, the tribunal has exclusive jurisdiction to hear and decide all appeals from final decisions of the board with respect to an employer’s classification under the insurance plan and the amount of the premiums payable. Under s. 124(1) of the Act, the tribunal shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent.

5The tribunal heard and reviewed ample oral evidence and submissions and concluded that the applicant and IKO were not “associated” within the meaning of the Act, because IKO did not have enough shares to elect a majority of the board and thus have control over the applicant. We are of the view that the conclusion of the tribunal fell squarely within its jurisdiction and it was not patently unreasonable.

MCRAE J.

6The application record will be endorsed: “The application is dismissed. Oral reasons delivered by Dunnet J.

7No order as to costs.”

MCRAE J.

DUNNET J.

JENNINGS J.

Date of Reasons for Judgment: November 10, 2003

Date of Release: December 3, 2003

COURT FILE NO.: 735/02

DATE: 20031110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcrae, dunnet and jennings j.