CITATION: Boroumandi v. Workplace Safety and Insurance Appeals, 2010 ONSC 2391
DIVISIONAL COURT FILE NO.: 549/08
DATE: 20100422
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
BEHROUZ BOROUMANDI
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
Francois Sauvageau, for the Applicant
Daniel S. Revington, for the Respondent
HEARD at Toronto: April 22, 2010
sachs j. (orally)
Introduction
[1] In this application for judicial review the Applicant seeks to review the decision of the Workplace Safety and Insurance Appeals Tribunal (the "Tribunal") dated December 17, 2007, which dismissed his appeal from a decision of the Workplace Safety and Insurance Board.
[2] As a result of the Tribunal's decision the Applicant's claim for long-term benefits was denied. The Applicant claims that he is suffering from a psychological impairment that is directly and clearly related to a work-related injury that he suffered as a result of a fall from a ladder on February 26, 2003.
The Tribunal's Decision
[3] The Tribunal recognized that there was evidence that the Applicant began to suffer from depression after the work-related injury and that there was no evidence that he suffered from depression before the injury. They accepted that this "suggests that the injury may have been a factor that contributed to the development of the worker's depression". The question that they had to decide was whether the work-related injury made a significant contribution to the disability that the Applicant was experiencing as a result of his depression.
[4] The Tribunal found that the evidence suggested that "the worker's depression arose primarily after his benefits were stopped by the WSIB". This occurred one year after the work- related injury. Once the Applicant's benefits were stopped, the Applicant lost his home and his car. The Tribunal also found that there were other factors that likely contributed to the Applicant's depression, including his considerable change in circumstances after leaving Iran and his separation from his wife. They concluded that the significance of these factors outweighed the contribution of the work-related injury to such an extent that the injury could not be seen as a factor that made a significant contribution to the development of the Applicant's depression.
The Issues
[5] The Applicant argues that he was denied natural justice because the Tribunal relied on a letter from his daughter without calling her as a witness and without giving her notice that it was going to make use of the letter.
[6] The Applicant also submits that the decision of the Tribunal was not reasonable because it was not supported by the evidence and/or it failed to consider all relevant evidence.
Analysis
I. Was the Applicant Denied Natural Justice?
[7] It is accepted that there is no need for a standard of review analysis with respect to natural justice. The question to be determined is whether the duty of fairness was adhered to.
[8] The Applicant argues that the Tribunal's decision was primarily based on the letter from his daughter, which described her difficulties in adjusting to Canada and not his. To the contrary, he testified that he did not have adjustment problems, was happy working in sales, felt successful and felt that everything was good prior to the accident.
[9] The strict rules of evidence do not apply to the Tribunal. The Tribunal may admit hearsay evidence. There was no requirement that the author of the letter be sworn as a witness before the letter could be made use of by the Tribunal. The Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 contemplates the use of the Board's file on an appeal – a file that is inevitably replete with hearsay. Indeed the documents relied on by the Applicant were also hearsay.
[10] In addition, the Applicant had ample notice that the Tribunal might make use of the letter. It was quoted in the March 31, 2006 decision of the Board's Appeals Resolution Officer that was the subject of the appeal to the Tribunal. The decision of the Appeals Resolution Officer was released more than twenty months before the date of the hearing before the Tribunal. Had the Applicant wanted to clarify or qualify his daughter's letter, he was free to call her as a witness. She was not adverse in interest to him. On the contrary, the evidence is overwhelming that the Applicant had a very close relationship with his daughter and that she was helping him with his appeal. Indeed he testified that he was very close to his daughter.
[11] Finally, we note that the Applicant was questioned about the letter during the hearing and that while the letter was referred to in the reasons of the Tribunal, the letter was not the primary basis of its decision.
[12] Accordingly, we conclude that the Applicant was not denied natural justice because the Tribunal made use of the Applicant's daughter's letter.
II. Was the Decision of the Tribunal Unreasonable Because It Was Not Supported by the Evidence and/or Evidence Was Ignored?
[13] Implicit in the way we have framed this issue is our acceptance that the applicable standard of review is reasonableness (see Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 719, [2008] O.J. No. 4103 (C.A.) at para. 16.) In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 436, [2008] O.J. No. 2150 at paras. 14 and 24, the Court of Appeal applied Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and confirmed that "the jurisprudence has established that the highest level of deference applies to Tribunal decisions". There was ample evidence before the Tribunal to support its conclusion that while the accident may have been a factor that contributed to the Applicant's depression, it did not make a significant contribution, and that other non work-related factors outweighed the contribution of the work-related injury to such an extent that this injury could not be seen as a factor that made a significant contribution to the development of the Applicant's depression.
[14] The source of this evidence included the Applicant's own evidence, including his evidence that his mood improved significantly during a six month trip to Iran between April and November of 2004, his daughter's letter and the fact that he was not diagnosed or treated for depression until after his benefits were stopped.
[15] The Applicant attacks the Tribunal's reliance on his daughter's letter primarily on the basis that it was written from her point of view and reflects her difficulties in coping with the family's move to Canada. But the letter recites numerous changes in the Applicant's life that could reasonably account for his depression, including the loss of his high level career and high social status in Iran, the break-up of his marriage when he came to Canada, his struggle at low level jobs in Canada, his financial difficulties after the accident, particularly after his benefits were stopped and his shame at his reduced circumstances, which he hid from his relatives. While he denied that these considerations contributed to his depression, he confirmed most of these facts in his own evidence at the hearing.
[16] As already stated, we find that there was ample evidence to support the findings of the Tribunal. Further, we are not persuaded that they ignored relevant evidence.
[17] For these reasons, we find that the Tribunal's decision was reasonable and the application for judicial review is therefore dismissed.
SWINTON J.
[18] I have endorsed the Application Record, "This application is dismissed for oral reasons delivered by Sachs J. No costs are awarded."
SACHS J.
SWINTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: April 22, 2010
Date of Release: May 5, 2010
CITATION: Boroumandi v. Workplace Safety and Insurance Appeals, 2010 ONSC 2391
DIVISIONAL COURT FILE NO.: 549/08
DATE: 20100422
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
BEHROUZ BOROUMANDI
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: April 22, 2010
Date of Release: May 5, 2010