Citation and Court Information
CITATION: Becker v. Workplace Safety and Insurance Appeals Tribunal, 2012 ONSC 6946
DIVISIONAL COURT FILE NO.: 5/11
DATE: 20121205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND R.S.J., ASTON AND LEDERER JJ.
BETWEEN:
FLORENCE BECKER
Applicant
(Responding Party)
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
(Moving Party)
Yehuda Levinson, for the Applicant
Daniel S. Revington, for the Respondent, Workplace Safety and Insurance Appeals Tribunal
HEARD at Toronto: December 5, 2012
Oral Reasons for Judgment
hackland r.s.j. (ORALLY)
[1] The applicant is seeking judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal, dated December 18, 2000. The respondent Tribunal brings a preliminary motion to have this application for judicial review dismissed for delay.
[2] The applicant applied for reconsideration on six subsequent occasions following the original decision on December 18, 2000. Those six subsequent reconsiderations, resulted in decisions dated March 28, 2001, May 10, 2002, August 21, 2002, June 25, 2003, June 29, 2005 and November 1, 2007.
[3] This judicial review application was commenced January 7, 2011, some eighteen years after the first injury, fifteen years after the second injury in issue and ten years since the Tribunal’s original decision. The gap between the Tribunal’s last reconsideration decision in November 2007, to the commencement of this judicial review application, was over three years. There is no longer a transcript of the Tribunal’s December 18, 2000 hearing because the Tribunal’s policy is to destroy tapes after the expiry of five years. The applicant has filed an affidavit outlining some efforts that she made to obtain legal representation, although this is cast in somewhat vague terms.
[4] In exercising its discretion to dismiss an application for judicial review for delay, the courts take into account:
(a) the length of the delay;
(b) the reasonableness of any explanation offered for the delay, and
(c) any presumed or actual prejudice suffered by the respondent as a result of that delay.
[5] The cases supporting that proposition are not in dispute and are in the parties’ materials.
[6] Counsel for the Tribunal submitted that we might expand this test to include consideration of the apparent merits of the application.
[7] It is, in our view, unnecessary for us to do so in this case because the application of the recognized three part test is dispositive of the motion.
[8] In our view, the Court must decline to exercise its judicial review jurisdiction in view of the extreme delay from the Tribunal’s substantive decision of December 18, 2000, the vague explanation offered for the delay and the real possibility of prejudice to the Board’s interest in the integrity of the process.
[9] The respondent’s motion to dismiss this application for delay is granted. There will be no costs.
HACKLAND R.S.J.
ASTON J.
LEDERER J.
Date of Reasons for Judgment: December 5, 2012
Date of Release: December 11, 2012
CITATION: Becker v. Workplace Safety and Insurance Appeals Tribunal, 2012 ONSC 6946
DIVISIONAL COURT FILE NO.: 5/11
DATE: 20121205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND R.S.J., ASTON AND LEDERER JJ.
BETWEEN:
FLORENCE BECKER
Applicant
(Responding Party)
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
(Moving Party)
ORAL REASONS FOR JUDGMENT
HACKLAND R.S.J.
Date of Reasons for Judgment: December 5, 2012
Date of Release: December 11, 2012