Citation: Lochner v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 1432

DIVISIONAL COURT FILE NO.: 718/77

DATE: 20180302

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: lina lochner, Applicant/Responding Party

AND

workplace safety and insurance appeals tribunal, Respondent/Moving Party

BEFORE: Swinton J.

COUNSEL: Silvano Lochner spoke for Lina Lochner, unrepresented, Applicant/Responding Party

Andrew Lokan, for the Respondent/Moving Party

HEARD at Toronto: March 1, 2018

ENDORSEMENT

[1] The Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) has brought a motion to strike and dismiss this application for judicial review (Court File 718/17) as an abuse of process.

[2] The applicant’s son, Silvano Lochner, was permitted to speak on her behalf during the hearing after he agreed to act in a civil manner and not attempt to contact me by email after the hearing.

[3] On November 16, 2017, a panel of the Divisional Court dismissed the applicant’s application for judicial review of Tribunal Decision 224/16 (delivered May 31, 2016). That application was made in Court File 168/17. The Tribunal decision had rejected the applicant’s request to have her NEL benefit, which had been paid as a lump sum, converted to a monthly payment retroactive to 1993 and ongoing.

[4] In September 2017, the applicant had brought a separate application for judicial review of the Tribunal’s Reconsideration Decision 224/16R (delivered May 26, 2017). This was Court File 552/17. The Tribunal brought a motion to consolidate the hearing of Files 168/17 and 552/17 in October 2017. However, the applicant abandoned the application in File 552/17 on the eve of the hearing of the motion.

[5] Thus, File 168/17 was before the panel of the Divisional Court for the hearing in late October. In his reasons dismissing the application for judicial review in File 168/17, Pattillo J. includes discussion of both the original and reconsideration decisions, and he refers favourably to the analysis in the Reconsideration Decision at paras. 29 and 36 (2017 ONSC 6657).

[6] The applicant has now brought a new application, File 718/17, seeking judicial review of the Tribunal’s Reconsideration Decision 244/16R. In substance, the grounds in this new application and the two earlier applications are the same. In essence, the applicant seeks to overturn the original Decision 244/16 dealing with conversion of her NEL benefit.

[7] The present application is clearly an abuse of process. To allow the application to proceed would, in the words of Arbour J. in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37, “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.”

[8] The arguments concerning the Reconsideration Decision could and should have been raised in conjunction with the earlier application for judicial review. Indeed, the Divisional Court panel considered and relied on some of the analysis in the Reconsideration Decision in its reasons. The Tribunal should not have to litigate this matter once again in the guise of a new application for judicial review of the Reconsideration Decision. The applicant’s conduct, in launching and abandoning the earlier review of the Reconsideration Decision, and then commencing the present application, is vexatious.

[9] Moreover, this application is an improper collateral attack on the November 2017 decision of the Divisional Court. In that decision, the panel determined that the original decision of the Tribunal respecting the NEL benefit conversion was reasonable. In his reasons, Pattillo J. discussed the Reconsideration Decision and agreed with its analysis. No purpose would be served by a further judicial review of the Reconsideration Decision, which, like the Court’s decision, found the original decision to be reasonable. To allow this application to proceed to a hearing would be a waste of judicial resources, unfair to the Tribunal, and contrary to the need for finality in judicial proceedings.

[10] The applicant has argued that the Court has a discretion to allow relitigation where there has been fraud in the original proceeding. There is no merit to the argument that Tribunal counsel was fraudulent in the submissions made in the factum for the earlier judicial review. The reasons of the Divisional Court show that it had s. 42(2) of the legislation, as well as the other subsections of s. 42 before it. Moreover, if the applicant disagreed with the submissions made by the Tribunal’s counsel, the time to raise this was in the hearing before the panel in October 2017.

[11] Finally, I see no injustice to the applicant if the present application for judicial review is quashed. Clearly, the applicant does not agree with the past decisions of the Tribunal or the Divisional Court. The appropriate remedy is to seek leave to appeal to the Court of Appeal, and I note that she has brought proceedings to obtain leave.

[12] Accordingly, the motion is granted, and the application in Court File 718/17 is dismissed. Costs to the Tribunal are fixed at $1,000.00 all in.

Swinton J.

Date: March 2, 2018