Court File and Parties

CITATION: Marttunen v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 4317

DIVISIONAL COURT FILE NO.: DC-12-004

DATE: 20130801

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DONALD JAMES MARTTUNEN Applicant

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent

BEFORE: MATLOW, LEDERER & MULLIGAN JJ.

COUNSEL: Donald J. Marttunen, In person Gillian Shaw, for the Respondent

HEARD: June 18, 2013 in Thunder Bay

ENDORSEMENT

LEDERER, J.:

INTRODUCTION

[1] This is an application for judicial review of a decision of the Workplace Safety and Insurance Tribunal (the “Tribunal”) that was released on May 19, 2004 (Decision No. 10/04). The applicant was self-represented. In the decision, the Tribunal concluded that the applicant was not entitled to a benefit pursuant to s. 147(4) of the Workers’ Compensation Act, R.S.O. 1990, c. W. 11 (the “Act”). The Tribunal was represented by counsel and made submissions. The Attorney General was served but did not participate.

[2] This application brings into focus a consideration of the interplay of s. 147(2) and s. 147(4) of the Act. The proceedings which gave rise to this application have a long history. Following Decision No. 10/04, the applicant, the worker, made nine separate requests for its reconsideration. The first two were passed on to Vice-Chairs of the Tribunal. In both cases, they were found not to meet the threshold test for reconsideration. There was no significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision (Decision No. 10/04 R3, at paras. 14-16). The six requests for reconsideration which followed were all denied by the Tribunal Chair. The ninth request for reconsideration was referred to a Vice-Chair and the hearing conducted in writing. It is said to have been “heard” on September 29, 2011. The decision was released on January 12, 2012, which is to say, nearly eight years after Decision No. 10/04 was issued. The Vice-Chair, who considered this request, identified three issues that had not been previously addressed:

1. Whether the Vice-Chair committed a procedural error in not giving the worker notice that his initial entitlement to s. 147(4) benefits would be an issue under consideration;

2. Whether the Vice-Chair committed a procedural error in not advising the worker of the downside risk arising from his request for s.147(2) benefits from November 1, 1989 to November 1, 1991; and,

3. If either of these errors did exist, whether correcting them would likely produce a different result.

(Decision No. 10/04 R3, at para. 34)

[3] They were each considered and rejected. The request for reconsideration was refused. In arriving at this conclusion, the Vice-Chair noted that: “If the worker continues to be dissatisfied with the substantive decisions made by the original Vice-Chair, he has the option of seeking a judicial review” (Decision No. 10/04 R3, at para. 32).

[4] This application appears to be the judicial review envisioned by the Vice-Chair.

BACKGROUND: THE FACTS

[5] The applicant was employed by the Canadian Pacific Railway as a yardman/trainman. He strained his right shoulder on July 16, 1986 while operating a switch. The diagnosis was a right rotator cuff injury. He was off work from August 9, 1986 to December 10, 1986, during which time the Workplace Safety and Insurance Board (the “Board”) paid him temporary total disability benefits. He returned to work during December 1986 and worked until December 1987 when he fell at work, re-injuring his shoulder. He stopped working on December 24, 1987. The Board, again, paid him temporary total disability benefits.

[6] In April 1989, the applicant was assessed for a permanent disability award in the amount of 7%. This was later increased to 10% in June 1999 and to 15% in December 2000. According to his application, it is now 20%. He began receiving vocational rehabilitation assistance from the Board. Eventually, in 1995, the Board agreed to sponsor him to attend university for a Bachelor of Science degree. He completed the program and is now qualified to be and has worked as a laboratory technician.

BACKGROUND: HISTORY OF THE PROCEEDINGS

[7] Quite apart from the benefits to which I have referred, the applicant received “supplements” provided for under s. 147 of the Act. In a decision, dated December 6, 1998, a Pension Adjudicator directed that, for the years between November 1, 1989 and November 1, 1991, the applicant was to receive a supplement pursuant to s. 147 (4). That section reads:

Subject to subsections (8), (9) and (10), the Board shall give a supplement to a worker,

(a) who, in the opinion of the Board, is not likely to benefit from a vocational rehabilitation program in the manner described in subsection (2); or

(b) whose earning capacity after a vocational rehabilitation program is not increased to the extent described in subsection (2) in the opinion of the Board.

[Emphasis added]

[8] This decision was confirmed by the decision of a Review Specialist. The supplement, as granted, was for a time-limited two-year period.

[9] The applicant was dissatisfied with this result. He wanted the benefits provided for by s. 147(2) of the Act. It reads:

Subject to subsections (9) and (10), the Board shall give a supplement to a worker who, in the opinion of the Board, is likely to benefit from a vocational rehabilitation program which could help to increase the worker’s earning capacity to such an extent that the sum of the worker’s earning capacity after vocational rehabilitation and the amount awarded for permanent partial disability approximates the worker’s average or net average earnings, as the case may be, before the worker’s injury.

[Emphasis added]

[10] The matter was considered by an Appeals Resolution Officer. In initiating this appeal, the applicant explained what he was asking for, as follows:

Mr. St. Pierre agreed with the Hearings Officer and the Tribunal that s. 147(4) was inappropriate and 147(2) should of [sic] been awarded as the reason why he couldn’t consider it meeting the eligibility requirement allowing for a recalculation of the supplement. Therefore I am requesting that it be changed to 147(2). You will see in the file an active job search was being conducted at this time. If not then the 147(4) should be recalculated and awarded. If this dichotomy persists the only obvious explanation is a bias exists.

[Emphasis added]

[11] The Appeals Resolution Officer left things as they were. This was the final decision of the Board. It was subject to appeal to the Tribunal and Decision No. 10/04 is the result of the appeal that was taken to the Tribunal. In that decision, the Tribunal concluded that, during the period for which the benefits under s. 147(4) had been awarded, the applicant was, in fact, a person likely to benefit from vocational rehabilitation. The decision to award the applicant benefits under s. 147(4) was an error. Thus, he was entitled to benefits under s. 147(2) and not those provided by s. 147(4). In short, he got what he asked for.

[12] Nonetheless, the applicant was not satisfied and launched the nine requests for reconsideration and this judicial review. As matters have transpired, the applicant believes he would have done better if his benefits under s. 147(4) had never been terminated. The various attempts at reconsideration have been directed to the idea that the Tribunal was without jurisdiction to end those benefits. They should have been left in place even as the benefits under s. 147(2) were provided. The applicant believed he should have been able to collect both at the same time.

ISSUES

[13] It is in these circumstances that we are left to consider the submission that the Tribunal could not properly terminate the award of benefits under s. 147(4). In taking this position, the applicant raises the following issues:

1. The Tribunal was without jurisdiction to end these benefits;

2. The applicant was denied procedural fairness in that:

(a) he received no notice that his benefits under s. 147(4) were in issue, and,

(b) the Tribunal failed to advise him of the ‘downside risk’ in maintaining his position that he should receive supplemental benefits under s. 147(2).

STANDARD OF REVIEW

[14] On this application for judicial review, the applicant seeks to quash the decision of the Tribunal and asks that the matter be sent back for a new hearing. With the exception of the issue of proper notice, the standard of review is reasonableness. A privative clause is a statutory provision that seeks to exclude the jurisdiction of the court to review the legality of actions taken by statutory bodies such as administrative boards and tribunals. There are two sections in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 Sch. which, together, put a powerful privative provision in place:

An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.

and

No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into court.

(Workplace Safety and Insurance Act, 1997, s. 123(4) and s. 123(5))

[15] This legislation has been referred to as having the “toughest privative clause known to Ontario law” (Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, [2008] O.J. No. 4103 (ONCA), at para. 22; leave to appeal refused, [2008] S.C.C.A. No. 541).

[16] There are prior decisions of the court recognizing the expertise of the Tribunal (Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), supra, at para. [19]; Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, [2008] O.J. No. 2150 (C.A.), at para 14; and, Audmax v. Ontario (Human Rights Tribunal), 2011 ONSC 315, [2011] O.J. No. 210 (Ont. Div. Ct.), at para. 29).

[17] In this case, the Tribunal was interpreting and acting under its home statute. No legal principle of general application is involved.

[18] For these reasons, with the exception of the issue concerning notice, the standard of review is reasonableness.

[19] Notice is an issue that runs to natural justice and procedural fairness. The standard of review analysis outlined in Dunsmuir v. New Brunswick 2008 SCC 9, 1 S.C.R. 190, does not apply.

ANALYSIS

1. Jurisdiction

[20] The issue of whether the Tribunal had the jurisdiction to terminate the benefits which had been granted to the applicant, pursuant to s. 147(4), is not a true question of jurisdiction. Rather, the Tribunal was interpreting its authority under its home statute.

[21] The applicant submitted that the question of his rights under s. 147(4) were never properly appealed. In making this submission, reliance was placed on the Workplace Safety and Insurance Act, 1997, which states:

A worker, employer, survivor, parent or other person acting in the role of a parent under subsection 48(20) or beneficiary designated by the worker under subsection 45(9) may appeal a final decision of the Board to the Appeals Tribunal.

(Workplace Safety and Insurance Act, 1997, supra, s. 125(1))

[22] As the applicant sees it, none of the individuals prescribed in this section raised the issue and, pursuant to this section, it was not open to the Tribunal to end these benefits on its own. This denies the substance of what the applicant (the “worker”) was requesting and the nature of what s. 147 provides. As the applicant’s letter to the Appeals Resolution Officer makes plain, he wanted a change. He wanted the benefits provided by s. 147(2) rather than those he was receiving under s. 147(4). This is exactly what he got as a result of Decision No. 10/04. It is not possible to consider one section without taking into account the other. They represent two sides of the same coin. Looking forward in time, a worker has the right to the benefits under s. 147(4)(a) if he or she is “not likely to benefit from a vocational rehabilitation program”. It is on this basis that the applicant was initially awarded benefits under this section. On the other hand, if a worker is “likely to benefit from a vocational rehabilitation program”, it is s. 147(2) that applies. It is this section that was found, by the Tribunal, to apply when it rendered Decision No. 10/04. It is not possible to be “likely to benefit” and “unlikely to benefit” from vocational rehabilitation at the same time. This being so, a determination of one alternative requires consideration of the other. Contrary to the submissions of the applicant and consistent with the decisions of the Tribunal (both Decision No. 10/04 and the decisions concerning the requests for reconsideration), it is not possible to collect both benefits at the same time. Viewed in this way, it is evident that the consideration, by the Tribunal, of s. 147(4) and it decision to terminate the applicant’s benefits under that provision, in favour of those provided by s. 147(2), was reasonable and within the jurisdiction of the Tribunal.

[23] The applicant made reference to s. 147(4)(b). This provision allows for the benefits to be provided after a vocational rehabilitation program has been completed and the earning capacity of the worker does not increase as projected by section 147(2). This has no application to the jurisdiction of the Tribunal to terminate a benefit that had been paid prior to the completion of the program (November 1, 1989 to November 1, 1991). Rather, it concerns the merits of Decision No. 10/04 where it examined the earning capacity of the applicant after his graduation from university in 1998 and after he was qualified to be a laboratory technician (Decision 10/04, at paras. 85-91). The Tribunal determined that, after vocational rehabilitation, the earning capacity of the applicant had increased to the amount described in s. 147(2) and that he was not entitled to benefits subsequent to August 1998.

2. (a) Notice

[24] The applicant submitted that he had no notice of the possible termination of his benefits under s. 147(4) and, thus, was denied fairness and natural justice. In this case, no notice was required. It is the applicant who initiated the appeal to the Tribunal and this judicial review. The letter he wrote to the Appeals Resolution Officer demonstrates that he understood that the granting of the benefits under s. 147(2) required that he would lose his benefits under s. 147(4). He asked that there be a “change” from the latter to the former.

[25] Even if this were not so, in considering the ninth reconsideration request, the Vice-Chair observed, “the Hearing Ready letter issued to the parties in this appeal makes specific reference to section 147”. The Vice-Chair went on to find “that should be sufficient in the circumstances to put the parties on notice that issues concerning the interplay between various sections of this provision was within the scope of the appeal” (Decision No. 10/04 R3, at para. 37). Section 147 provides a complete code dealing with supplemental benefits. It must be considered as a whole. It would not be proper to parse out one set of possible benefits while ignoring the other. The applicant had notice that this issue would be part of this reconsideration request, but the Vice-Chair, nonetheless, determined that the threshold test was not met. No submission was made that would suggest that this finding was unreasonable. Accordingly, even if notice was not provided in advance of the hearing that led to Decision No. 10/04 and the applicant was unaware that that the issue was properly before the Tribunal (which I have found was not the case), that error has been corrected through the reconsideration process.

[26] However this is viewed, there has been no lack of fairness and no denial of natural justice arising from a lack of notice.

2. (b) Downside Risk

[27] The applicant submits that the Tribunal erred by failing to advise him of the “downside risk” in his proceeding as he did. The risk was in the potential that he would lose his benefits under s. 147(4) and be worse off. After Decision No. 10/04 was released, an adjustment was made to the value of the benefits the applicant received. There was an increase. This is because the benefits under s. 147(2) were higher than those provided under s. 147(4). On this basis, there was no downside risk. The applicant’s complaint is that he should have been warned that it was possible that, even with vocational rehabilitation and the accompanying acquisition of an earning capacity that was comparable to what he had had before the accident, he might still earn less and have been better off if he had foregone the rehabilitation and continued to collect the benefits under s. 147(4).

[28] There are significant problems with this position. There is no duty on the Tribunal to advise the applicant of the possibility of the series of events that would lead to the outcome that the applicant says he now confronts. The fact remains that, as Decision No. 10/04 determined, he was not entitled to benefits under s. 147(4). If he had not appealed and requested the change, it may be that he would have continued to receive payments based on a decision that was made in error but not, as the applicant proposed, until he qualified for old age security. The original decision to grant the benefits under s. 147(4) limited the payment to two years. Counsel for the Tribunal readily conceded this was an error. The Board has no jurisdiction to limit s. 147(4) benefits in this way. It seems reasonable to suggest that this error, like the granting of benefits the applicant was not entitled to, would not have been discovered, but the benefits would have stopped after two years. As it is, the higher benefits provided by s. 147(2) continued for seven years. There was no downside risk. This submission reveals the reality that, as the applicant conceded, his position, as presented to the court, arose only with the benefit of hindsight. It should not be necessary to say that the court cannot revise history to suit what has transpired since the events at issue took place.

CONCLUSION

[29] The application is dismissed.

COSTS

[30] Neither party is seeking costs. None are awarded.

LEDERER J.

MATLOW J.

MULLIGAN J.

Date: August 1, 2013