COURT FILE NO.: 315/02

DATE: 20030404

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, BROCKENSHIRE AND CAMERON JJ.

B E T W E E N:

VALERIE CALEB-CHARLES Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent

Osborne G. Barnwell, for the Applicant Daniel S. Revington, for the Respondent

HEARD: April 4, 2003

ORAL REASONS FOR JUDGMENT

CAMERON J.: (Orally)

1This is an application for judicial review to quash an order of the Workplace Safety and Insurance Appeals Tribunal (the "Tribunal") dated April 19, 2002 denying the applicant's request to reconsider the Tribunal's decision following a hearing, dated April 30, 2001.

2The proceedings arise out of the applicant's request for benefits under s.4 of the Workers' Compensation Act ("W.C.A.") now the Workplace Safety and Insurance Act, 1997 ("W.S.I.A.") by reason of carpal tunnel syndrome allegedly caused by accident arising out of and in the course of the applicant's employment between 1979 and 1975. The applicant had appealed to the Tribunal from a decision of an Appeals Resolution Officer of the Workplace Safety Insurance Board.

3The parties agreed that the standard of review under the Judicial Review Procedure Act of the Tribunal's decision is patent unreasonability. We have considered the transcript of the hearing before the Tribunal, the Tribunal's reasons and decision following the hearing and its reasons on its refusal to reconsider the decision. The applicant was provided with a copy of Dr. Graham's paper and had an opportunity to present evidence responding to it. The Tribunal considered all the medical evidence submitted by the applicant both at the hearing and on the request for review.

4The Tribunal correctly assessed the requirements of s.4 of the W.C.A. and issues of causation, burden of proof and application of the presumption. Findings of fact are within the exclusive jurisdiction of the Tribunal. This Court cannot interfere in the fact finding process unless it was patently unreasonable.

5The Tribunal found a lack of temporal connection between the applicant's carpal tunnel syndrome and the nature of her work. This conclusion was available to the Tribunal on the evidence before it at the hearing. The refusal of the request to reconsider was within the Tribunal's discretion under s.129 of the W.S.I.A. The test outlined in paragraph 6 of the refusal decision is based on considerations appropriate to the exercise of that discretion. There was support for that conclusion in the second reports of Dr. Shelley and Dr. Massiah. Dr. Shelley could only say that the applicant's occupation was a possible aggravating factor. Dr. Massiah said in his letter, "It is therefore difficult, if not impossible, for me to associate the onset of the carpal tunnel syndrome with any form of repetitive work which might have occurred previously. Indeed the etiology of carpal tunnel syndrome is still a 'wide open and multi-factoral one'."

6In the face of that evidence we cannot say the exercise of that discretion was exercised in a patently, unreasonable manner. The application is dismissed.

LANE J.

7The application record reads: "The application is dismissed for the reasons delivered by Mr. Justice Cameron, the Tribunal does not seek costs".

LANE J.

BROCKENSHIRE J.

CAMERON J.

Date of Reasons for Judgment: April 4, 2003