CITATION: Chaudhari v. Ontario (Workplace Safety and Insurance Tribunal), 2010 ONSC 1032
DIVISIONAL COURT FILE NO.: 473/09
DATE: 20100212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J.O, Ferrier, and McCombs, JJ.
BETWEEN:
Popat Chaudhari (on his own behalf and on behalf of all others similarly situated)
Applicant
– and –
Ontario Workplace Safety and Insurance Appeals Tribunal
Respondent
Marcus A. Lennox and Ken Peacocke, for the Applicant
Brad Elberg, for the Respondent
HEARD: February 3, 2010
REASONS FOR JUDGMENT
THE COURT
OVERVIEW
[1] This application for judicial review originally included an additional application for certification as a class action. However, the parties have agreed that this Court should determine only the application for judicial review. Any issues related to class action certification should be dealt with on a separate motion before a judge of the Superior Court of Justice.
[2] This application concerns temporary disability entitlements under s. 37(2)(b)(i) of the Workers’ Compensation Act, R.S.O. 1990, c. W.11 (the “Act”). The Applicant Popat Chaudhari (“Chaudhari”) submits that the Respondent Ontario Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”)[^1] exceeded its jurisdiction or, in the alternative, erred in its interpretation of its enabling legislation and in its application of policies that were not authorized by the Act.
[3] The interpretation resulted in a reduction of Chaudhari’s temporary partial benefits to 50% of his maximum entitlement.
[4] We have concluded that the application must be dismissed. These are our reasons.
STANDARD OF REVIEW
[5] Chaudhari submits that the standard of review is correctness. Generally, where a tribunal has acted within its jurisdiction, the standard of review concerning questions of law within a tribunal’s statutory authority is correctness. However in certain circumstances, a tribunal’s decisions are entitled to deference, and a reasonableness standard will be called for. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court stated, at para. 55:
A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:
• A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.
• A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).
• The nature of the question of law. A question of law that is of "central importance to the legal system ... and outside the ... specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.
[6] All three factors identified in Dunsmuir as favouring a reasonableness standard of review are present in this case:
• the Act contains a strong privative clause[^2];
• the Tribunal is part of a special administrative regime with a specialized area of expertise; and,
• the nature of the question of law under consideration falls squarely within the specialized area of expertise of the administrative regime.
[7] In these circumstances, notwithstanding that the tribunal was interpreting a question of law, the standard of review is one of reasonableness.
[8] We will first address the jurisdictional issue raised on behalf of Chaudhari.
(a) Did the Tribunal exceed its Jurisdiction?
[9] Mr Chaudhari submits that the Tribunal exceeded its jurisdiction by creating and applying a “self-directed vocational rehabilitation program” requirement that is not provided for in or authorized by the enabling legislation[^3]. It is common ground that this threshold jurisdictional issue is reviewable on a standard of correctness[^4].
[10] The core of the test for excess of jurisdiction is whether there has been a “statutory grant of power”[^5] to the tribunal giving it the authority to decide the issue in question. Without a statutory grant of power, a tribunal acts outside its authority and without jurisdiction.
[11] In this application, Chaudhari submits that s. 37(2)(b)(i) of the Act restricts the Workplace Safety and Insurance Board (the “Board”) from creating a policy based on the notion of a “self-directed vocational rehabilitation program”.
[12] S. 37(2)(b)(i) provides:
(2) where temporary partial disability results from the injury, the compensation payable shall be,
(b) where the worker does not return to work, a weekly payment in the same amount as would be payable if the worker were temporarily totally disabled, unless the worker,
(i) fails to cooperate in or is not available for a medical or vocational rehabilitation program which would, in the Board’s opinion, aid in getting the worker back to work
[13] Chaudhari submits that, by creating a self-directed vocational rehabilitation program requirement, the Board has added an “additional criterion of exclusion” not permitted by the Act. He submits that the Board lacks legislative authority to create a policy that permits the Board, when it considers it appropriate, to require temporarily partially disabled workers to engage in a self-directed vocational rehabilitation program that will assist them in getting back to work. Under the policy, if the Board concludes that a partially disabled injured worker has failed to cooperate or is not available, then he or she will be subject to a reduction in or denial of compensation entitlement.
[14] In evaluating this jurisdictional issue, the reach and interpretation of s. 37(2)(b)(i) should be considered in its broader context, as part of the entire legislative scheme of compensation for injured workers. That broader consideration embraces the purposes of the legislation, which include providing, in a financially responsible and accountable manner, fair compensation to injured workers, and facilitating their return to work.[^6]
[15] The broader context of the Act also includes the fact that the Act confers exclusive jurisdiction upon the Board to determine all issues of compensation, and contains very strong privative protections.
[16] Subsection 69(1) provides:
Except as provided by this Act, the Board has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority or discretion is conferred upon the Board, and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court and no proceeding by or before the Board shall be restrained by injunction, prohibition or other process or procedure in any court or be removable by application for judicial review or otherwise into any court.
[17] Subsection 69(1) provides that the Board—and only the Board—has the power to decide issues of compensation for injured workers, unless its power is limited by another provision in the Act. Chaudhari submits that s. 37(2)(b)(i) is a statutory exception to the exclusive jurisdiction conferred on the Board by s. 69. We do not accept that submission. In our view, it is clear that the Board has the legal authority or “statutory grant of power” to interpret s. 37(2)(b)(i) as it has.
[18] The impugned policy created by the Board is not in excess of its jurisdiction; it is an exercise of the very authority conferred upon it by the legislation. The wording of s. 37(2)(b)(i), particularly when viewed in its larger context, is broad enough to permit the Board to conclude that in many cases, a self-directed program is an appropriate way to achieve the purposes of the legislation, which include providing fair compensation to injured workers and, where appropriate, encouraging them to return to the workforce.
[19] There was no loss of jurisdiction by the Tribunal.
(b) Was the Decision of the Tribunal Reasonable?
[20] In evaluating this issue, we remind ourselves that the reasonableness standard of review must now be understood in light of the decision in Dunsmuir, supra, which collapsed the reasonableness simpliciter and patent unreasonableness standards of review into a single standard of reasonableness. Before Dunsmuir, the standard of review of decisions under the Workers Compensation Act and the Workplace Safety and Insurance Act had been patent unreasonableness[^7]. However, the post-Dunsmuir reasonableness standard of review still mandates considerable deference on the part of the Court.
[21] A reviewing Court applying a reasonableness standard may only interfere if “there are no lines of reasoning supporting the decision which could reasonably lead the tribunal to reach the decision it did”[^8].
[22] With this standard of reasonableness in mind, we turn to the merits of this application.
[23] The policy in question is not new. The Board has consistently interpreted s. 37(2)(b)(i) in a manner that allows for a “self-directed vocational rehabilitation program” acceptable to the Board in the circumstances of the particular case under consideration. The “availability” requirements of s. 37(2)(b)(i) have been consistently interpreted to mean that partially disabled workers will be disqualified from receiving full benefits if they fail to demonstrate that they have made reasonable efforts to return to work[^9].
[24] The decisions under review in this application are Decision No. 351/07 dated March 19, 2007 and the March 8, 2008 reconsideration Decision No. 351/07R of the Tribunal. In Decision 351/07R at paras. 11-13, the Tribunal summed up the Applicant’s position as follows:
[11] It appears in essence that Mr. Lennox is of the view that the decision did not sufficiently address the question of self-directed vocational rehabilitation efforts of the worker. He also appears to be of the view that, pursuant to section 37(2)(b) of the Act, a worker who does not specifically “fail” to cooperate in vocational rehabilitation, or who does not specifically “fail” to accept a job, would, without more, be entitled to full WSIB benefits.
[12 I disagree that this proposition represents the state of the law in this matter. If I accepted this argument, that would mean a worker who might not have received formal VR support and who might not have received a direct job offer, but who otherwise was completely passive and made no attempt to seek work, would be entitled to full benefits.
[13] That, however, is not the state of the law. A worker who makes what is found to be an inadequate effort suffers a resulting reduction in benefits. Indeed, as the excerpts from the decision for which reconsideration is sought indicate, some Tribunal decisions have concluded that where insufficient effort to seek employment is made, benefits are reduced all the way to zero. That, however, is not the result for this worker.
[25] We are not persuaded that the Tribunal’s decision upholding the Board’s policy and its application to the Applicant Chaudhari was unreasonable. This Court is required to afford substantial deference to the Tribunal’s decisions. The law demands non-interference unless the decision under review is manifestly unreasonable and unsupportable by any line of reasoning. An interpretation designed to encourage partially disabled workers to return to the workforce or face the risk of a reduction in their compensation entitlements can hardly be characterized as unreasonable. The Application must therefore be dismissed.
[26] The Respondent does not seek costs. We agree that it is not appropriate to order costs in this case.
J.D. Cunningham. A.C.J.O.
L.K. Ferrier, J.
J.D. McCombs, J.
Released: February 12, 2010
CITATION: Chaudhari v. Ontario (Workplace Safety and Insurance Tribunal), 2010 ONSC 1032
DIVISIONAL COURT FILE NO.: 473/09
DATE: 20100212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J.O, Ferrier, and McCombs, JJ
BETWEEN:
Popat Chaudhari (on his own behalf and on behalf of all others similarly situated)
Applicant
– and –
Ontario Workplace Safety and Insurance Appeals Tribunal
Respondent
REASONS FOR JUDGMENT
Released: February 12, 2010
[^1]: The “Workplace Safety and Insurance Appeals Tribunal” derives its existence and authority under s. 123 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16. It has power to deal with pre-1997 decisions by virtue of the transitional provisions contained in s. 112.
[^2]: S. 69(1) of the Act, described in Rodrigues v. Ontario (Workplace Safety and Appeals Tribunal) (2008) 2008 ONCA 719, 92 O.R. (3d) 757 (C.A.) as “the toughest privative clause known to Ontario law”.
[^3]: Dunsmuir, supra, at paras. 28, 29, 59 & 60.
[^4]: Dunsmuir, supra, at para. 59. See also para. 29
[^5]: Dunsmuir, supra, at para. 59.
[^6]: Workers’ Compensation Act, supra, s. 0.1
[^7]: Dunsmuir, supra, para. 40.
[^8]: Dunsmuir, supra, para.40.
[^9]: See for example: Decision No. 710/91 of the Tribunal, dated April 20, 1993, p. 5; Decision No. 596/99 of the Tribunal, dated August 9, 1999, paras. 30-38; Decision No. 1869/00 of the Tribunal, dated November 27, 2000, paras. 104, 114, and 115; Decision no. 2235/01 of the Tribunal, dated April 30, 2002, paras. 103-116.