COURT FILE NO.: 398/04

DATE: 20051129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU, EPSTEIN AND LAX JJ.

B E T W E E N:

JACEK KLIMCZAK

Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Respondent

David Conn, for the Applicant

Daniel S. Revington, for the Respondent

HEARD: November 29, 2005

EPSTEIN J.: (Orally)

1Mr. Klimczak brings an application for judicial review of two decisions of the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), dated July 15, 2003, (“Decision”) and June 16, 2004, (the “Reconsideration Decision”).

2In the Decision, the Tribunal found first that Mr. Klimczak’s symptoms began in 1993 and second that the 1991 accident did not cause or contribute to his seizure symptoms that began in 1993.

3In the Reconsideration Decision, the Tribunal found that its threshold test for granting a Reconsideration Request had not been met.

4The issues before this Court are:

(i) What is the appropriate standard of review?

(ii) Applying the appropriate standard, did the Tribunal err?

5In dealing with Mr. Klimczak’s application for benefits, the Tribunal had to weigh conflicting medical opinions. This is precisely what the same tribunal was required to do in Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2005] O.J. 1295 (C.A.). In that decision, MacPherson J.A., speaking for the Court, held that in this context the standard of review is that of patent unreasonableness. There are no distinguishing features in the matter before us.

6In denying the appeal the Tribunal carefully reviewed the considerable volume of evidence and reached and explained its decision. According to Roach, this is precisely what it is supposed to do. In our view, the record before the Tribunal supports its decision.

7In its Reconsideration Decision the panel properly addressed and applied its test for reconsideration. We see no reason to interfere.

8For these reasons, the application for judicial review is dismissed.

9No costs.

PARDU J.

EPSTEIN J.

LAX J.

Date of Reasons for Judgment: November 29, 2005

Date of Release: December 2, 2005

COURT FILE NO.: 398/04

DATE: 20051129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT