CITATION: Reid v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 6649

DIVISIONAL COURT FILE NO.: 342/16

DATE: 20180511

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ASTON REID, Applicant

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

and TORONTO TRANSIT COMMISSION, Respondents

BEFORE: MARROCCO A.C.J., S.C., GORDON R.S.J. & MORAWETZ R.S.J.

COUNSEL: Matthew Langer and Jason Zhong, for the Applicant

Steve Lavender, for the Toronto Transit Commission

Michelle Alton and Kayla Seyler, for the Workplace Safety and Insurance Appeal Tribunal

HEARD at TORONTO: October 22, 2018

ENDORSEMENT

[1] The Applicant, Aston Reid, applies for the judicial review of the Respondent, the Workplace Safety and Insurance Appeals Tribunal’s (the “Tribunal”) Decision No. 841/16 (“Initial decision”) and Reconsideration Decision No. 841/16R denying entitlement for traumatic mental stress (“TMS”) under s. 13(5) of the Workplace Safety and Insurance Act (the “WSIA”).

[2] The Applicant commenced employment with the Respondent, the Toronto Transit Commission (the “TTC”), in 1979 and worked throughout the period of his employment as a bus driver. The Applicant’s bus route was in a rough part of the city. Over the course of his career, the Applicant was in several disputes with bus patrons.

[3] On November 14, 2011, the Applicant went off work due to stress and depression, and claimed sick benefits, which he received until he retired on January 7, 2012.

[4] On September 6, 2012, the Applicant filed a Worker’s Report of Injury with the Workplace and Safety Insurance Board (the “WSIB”) for entitlement to TMS benefits.

[5] In the report, the Applicant explained he was attacked by four female patrons who were angry about a fare increase in June 2005 and was experiencing flashbacks related to an incident on November 29, 2008, when a patron pulled out a knife after refusing to pay the fare.

Decision of the Case Manager

[6] On September 28, 2012 the WSIB’s Case Manager John Mercuri (“Mercuri”) denied the Applicant’s entitlement to WSIB benefits for TMS. Reflected in Mercuri’s decision is a discussion he had with the Applicant on September 26, 2012. During this discussion, the Applicant described a situation (“Apple incident”) in August 2011, where an undercover TTC investigator found him eating an apple while operating a bus and as a result unsuccessfully attempted to take his bus out of service. The Applicant, not knowing that the person was a TTC investigator, refused to give up control of his bus and police were called. The Applicant was called into the office of the TTC on the following day and was advised that the employer wanted to fire him over the incident. The Applicant testified at the Appeals Resolution Officer (ARO) hearing in August 2013 that as a result, he felt nervous at work and felt like the employer was constantly looking over his shoulder. The Applicant also testified that he felt like he could not drive his bus anymore even though the TTC took no disciplinary action against him.

[7] In applying the governing provisions under s. 13(5) of the WSIA and the Board’s operational policy, Mercuri found that the Applicant did not meet either of the criteria for entitlement to the TMS benefits. Those criteria are:

• an acute psychological reaction to a sudden or unexpected traumatic event arising out of or during employment; or
• a final psychological reaction to a series of sudden and traumatic events arising out of and during employment (the cumulative effect of such events).

[8] Mercuri explained that workers are not entitled to benefits for TMS that are the result of an employer’s employment decisions or actions. While Mercuri appreciated that the Applicant may have developed an acute psychological condition arising out of the November 2008 incident, he found that the Applicant returned to normal work duties without further incident. Mercuri found that following the August 2011 incident, the Applicant reported feeling nervous all the time while at work and that he was unable to drive the bus. Therefore, Mercuri found that Applicant’s current claim for entitlement was related to August 2011 incident and the employer’s decision to investigate the Applicant. Mercuri refused entitlement to benefits because there can be no entitlement for benefits because of an employer’s actions or decision.

[9] The Applicant requested a reconsideration of Mercuri’s decision.

WSIB Reconsideration Decision

[10] In a decision dated January 15, 2013, the WSIB denied the Applicant’s reconsideration. The WSIB conducted a field investigation to obtain further information from the TTC and the Applicant’s treating health practitioners.

[11] In the reconsideration decision, Mercuri explained that there was no evidence to support that the Applicant had any psychological impairment because of the November 2008 workplace incident. In support of this finding, Mercuri refers to evidence that the Applicant returned to full-time, regular work duties and that he did not receive any psychological treatment between 2008 and 2011.

[12] Mercuri found medical information referring to psychiatric treatment which the Applicant received in 2011 and reported that his condition was related to a significant non-work event. This was outlined in letters from the Applicant’s psychiatrist Dr. Yaroshevsky.

[13] Because in Mercuri’s view there was no clear or convincing evidence to support that the Applicant’s psychological condition was the result of the November 2008 incident, he concluded that the “prior decision to deny entitlement to WSIB benefits for any psychological condition remain[ed] unchanged”.

Appeals Resolution Branch of the WISB (the “ARO”) Decision

[14] The Applicant proceeded to appeal the reconsideration decision.

[15] Following an oral hearing on August 14, 2013 the Appeals Resolution Officer (ARO) found that no entitlement to benefits for TMS. In coming to this conclusion, the ARO carried out an assessment of the evidence, including a review of the Applicant’s testimony, the various disputes, and the Applicant’s treating physicians.

[16] While the ARO found that the 2008 incident could “most definitely be considered a sudden and unexpected [traumatic event] as defined in the policy” it was found that this alone was not determinative.

[17] The ARO found that the Applicant did not meet the criteria required for cumulative entitlement and that the Applicant’s decision to go “off work for depression” in 2011 prior to his retirement coincided with the employer’s investigation of the worker in August 2011.

[18] The ARO held that “the evidence does not support [the finding that] the depression causing the worker to go off work in November 2011 was related to the assaults in 2005 or 2008”.

The Tribunal’s Initial Decision and Reconsideration Decision

[19] The Applicant appealed the ARO decision to the Tribunal.

The Initial Decision

[20] The Initial unanimous decision of a three-person Panel denied the Applicant’s appeal.

[21] The Tribunal concluded that the weight of the evidence indicated that the entitlement requirements as set out in the applicable legislation and policy were not met and the appeal should be denied.

[22] In its decision, the Panel considered and commented on all the medical evidence presented. The Panel indicated the medical evidence that it found persuasive and its reasons for not attaching significant weight to the medical evidence which supported the Applicant’s claim.

[23] The Tribunal explained that entitlement for TMS would be granted where the evidence indicates that:

• A sudden and unexpected work-related traumatic event occurred;
• The worker suffered an acute reaction (either immediate or delayed) to the work-related event which results in a psychiatric or psychological response;
• The psychiatric or psychological response results in a DSM-IV Axis 1 Diagnosis for the worker; and
• an acute reaction to the most recent unexpected traumatic event, where a cumulative effect from multiple sudden and unexpected traumatic events is claimed.

[24] The Tribunal determined that the August 2011 incident was the culminating event for the purposes of determining entitlement under the WSIA and Board policy.

[25] The Tribunal provided seven reasons why the Applicant did not make out the necessary entitlement requirements as follows:

• The medical information, taken contemporaneously with the August 2011 events, in the Applicant’s file provided by his psychiatrist Dr. Yaroshevsky indicates that the Applicant’s psychological problems in 2011 were likely due to non-work-related reasons; namely legal stressors and financial burdens associated with the breakdown of the Applicant’s marriage.
• The medical information and reports provided by the Applicant’s treating physicians in 2005, indicate that he did not likely have an acute TMS reaction to the work events of 2005;
• The Applicant’s daily living was unrestricted (e.g. attended church regularly).
• Evidence indicating that there had been other personal life stressors impacting the Applicant since he laid off work in November 2011 and retired in January 2012.
• Significant inconsistencies between the contents of the Applicant’s Worker’s Report of Injury to the Board, his statements to the WSIB, his testimony at the ARO hearing in August 2013, and his testimony at the Tribunal hearing in August 2016 which raised concerns about the Applicant’s credibility and reliability as a witness.
• The Tribunal was persuaded and agreed with the TTC’s submissions that it should not place weight on the reporting of a second psychiatrist, Dr. Cooper, as the Applicant began seeing him after he had retired, and Dr. Cooper’s opinions were based on the Applicant’s subjective reporting of the incidents.
• The weight of the evidence indicated that the August 2011 was more likely culminating incident and the cause of the Application’s decision to lay off work in November 2011 and retire in January 2012, i.e. the Apple incident, and there is no entitlement under the WSIA for this incident because it was related to the employer’s actions relating to the worker’s employment pursuant to s. 13(5) of the WSIA.

The Reconsideration Decision

[26] In November 2016, the Applicant requested a reconsideration of the Tribunal’s Initial decision.

[27] On November 9, 2017, the Vice Chair dismissed the Applicant’s request finding that the Tribunal’s threshold test for granting a reconsideration had not been met.

[28] In the written decision, the Vice Chair explained that to be successful on a reconsideration application, the Applicant must satisfy the Tribunal that an otherwise final decision should be re-opened. To succeed the Applicant must either:

• Introduce substantial new evidence that would likely have produced a different result and that was not available at the time of the original hearing; or
• Demonstrate that there was a fundamental error of law or process, which, if corrected, would likely produce a different result.

[29] The Applicant applied for reconsideration on both grounds. In support of first ground, the Applicant filed a new medical report dated November 1, 2016, from his psychiatrist Dr. Cooper as substantial new evidence that was not available at the time of the original hearing and would likely have produced a different result at the original hearing.

[30] With respect to the second ground, the Applicant submitted that the Tribunal did not properly weigh the evidence and therefore committed a fundamental error in law, which if corrected would likely have produced a different result.

Ground One: New Evidence

[31] The Vice Chair found that the Dr. Cooper’s report was produced after the release of the Tribunal’s Initial decision, and therefore could best be characterized as reply evidence.

[32] The Vice Chair observed that the report was more evidence on the same issue, not evidence that is a discovery of some new fact.

[33] The Vice Chair further found that the report likely would not have produced a different result. The Vice Chair found that the facts at issue in the Applicant’s appeal before the Tribunal had not changed substantially since the time of the original WSIB decision in 2013. The Vice Chair explained that throughout the WSIB and ARO decisions, there was other medical evidence available indicating that the Applicant’s psychological state was related to personal, non-work-related events as well as the August 2011 incident.

[34] The Vice Chair also took issue with the report’s lack of detail and the fact that its findings conflicted with the medical opinion of Dr. Yaroshevsky which contemporaneously diagnosed the worker as suffering from a psychiatric problem in 2011 related to personal life problems.

[35] The Vice Chair concluded that the subject matter of Dr. Cooper’s 2016 report was not substantial new evidence and would likely not have produced a different result.

Ground Two: Weight Given to Evidence

[36] The Vice Chair dismissed the Applicant’s submission that the Initial decision should be reconsidered because the Tribunal did not properly weigh the evidence. The Vice Chair found the Applicant’s submissions were an attempt to re-argue the appeal and did not pinpoint a fundamental error in law.

[37] The Vice Chair found that the Tribunal did consider and weigh the evidence appropriately and provided clear and cogent reasons for denying the worker’s appeal.

[38] The Vice Chair concluded that there were no significant defects in the administrative process or content of the decision which, if corrected, would likely have changed the result of the original decision.

STANDARD OF REVIEW:

[39] The Parties all agree that the standard of review in this case is one of reasonableness

[40] Where a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

[41] In addition, I make the obvious observation that the Tribunal is a specialized and expert decision-making body, with exclusive jurisdiction to hear appeals from decisions of the WSIB which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under its home statute, the WSIA.

the tribunal provided adequate Reasons

[42] The Tribunal was justified, transparent, and intelligible in its reasoning in both the Initial and Reconsideration decisions.

[43] In Jakutavicius v. Canada (Attorney General), 2011 FC 311 Mr. Justice Zinn of the Federal Court made the following observation, at para. 31:

The reasons provided for a decision may fulfill the requirements of procedural fairness in the sense that the reasons meet the goals of focusing the decision maker on the relevant factors and evidence, providing parties with the assurance that their representations have been considered, allowing parties to effectuate any right of appeal or judicial review they might have and allowing reviewing bodies to determine whether the decision maker erred, and providing guidance to others who are subject to the decision maker’s jurisdiction: VIA Rail Canada v National Transportation Agency, 2000 16275 (FCA), [2001] 2 F.C. 25 (CA), at paras. 17-21. Yet the same reasons which meet procedural muster may render the decision unreasonable as a matter of substantive review. It is in this context that one examines, based on the reasons provided, the justification, transparency and intelligibility of the decision. Justification requires a decision maker to focus on relevant factors and evidence. Transparency requires a decision maker to clearly state the basis for the decision reached. Intelligibility requires a decision maker to reach a result that clearly follows from the reasons provided. [Emphasis added]

[44] In Newfoundland and Labrador Nurses’ Union, 2011 SCC 62, [2011] 3 S.C.R. 708, Abella J., speaking for the court stated, at para. 12:

It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision". In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

"Reasonable" means here that the reasons do in fact or in principle support the conclusion reached…For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front-line adjudicator, the tribunal's proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.

[45] The review of the adequacy of reasons is an organic exercise where the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a reasonable range of outcomes (Newfoundland and Labrador Nurses’ Union, at paras. 14, 22;).

[46] As can be seen from the summary of the Tribunal’s decision, the Tribunal focused on determining the culminating event and the requirements for entitlement for TMS. The Tribunal explained why the Applicant did not make out those requirements. The Tribunal’s reasoning explains and supports the conclusion that the requirements for entitlement to TMS had not been met.

The Tribunal’s Decision to refuse entitlement were reasonable

[47] The outcome; namely no initial entitlement to benefits for TMS on a cumulative basis; follows from the reasons provided. The reasons in the words of Professor Dyzenhaus, adopted in Newfoundland and Labrador Nurses’ Union “do in fact or in principle support the conclusions reached”.

The Tribunal’s Decision to Refuse to reconsider was reasonable

[48] As indicated, the Tribunal explained why the Applicant’s request failed to meet the threshold for reconsideration.

[49] The Tribunal focused on the two grounds put forward by the Applicant. The Tribunal considered the proposed new evidence and explained why it would likely not have affected the Initial decision. The Tribunal explained why it rejected the Applicant’s claims that at the initial hearing the Tribunal had wrongly failed to weigh the evidence offered by the Applicant.

[50] The Tribunal’s reconsideration decision states the basis for the decision reached. Its decision to refuse to reconsider follows directly from its conclusion about the adequacy of the grounds put forward as the basis for reconsideration.

[51] Finally, the Tribunal’s reasons for its refusal are supported by its conclusion, both in fact and in principle.

The Tribunal did not misapprehend or unreasonably reject Dr. Cooper’s medical opinion

[52] The Applicant submitted that the Tribunal unreasonably rejected Dr. Cooper’s medical opinion.

[53] I reject this submission.

[54] In its Initial decision the Tribunal indicated, at paras. 53 and 54 that it was aware of Dr. Cooper’s opinion and its reasons for failing to find his opinion persuasive. Specifically, the Tribunal found that Dr. Cooper’s conclusions were, in part, based on self-reporting by the Applicant and occurred in circumstances where the Tribunal had significant concerns about the credibility and reliability of the Applicant’s evidence.

[55] A reasonableness standard of review does not permit this court to substitute its opinion for the Tribunal’s opinion concerning the persuasiveness of Dr. Cooper’s opinion. Such an approach would be the utter antithesis of the deference inherent in a reasonableness review of a decision. The Tribunal did not misapprehend Dr. Cooper’s evidence; it did not find the evidence persuasive.

[56] This was not a case, like the decision in Toronto Star Newspapers Limited v Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 where the Tribunal was presented with reliable uncontradicted evidence which it failed to address. It was open to the Tribunal to view the opinions of Dr. Cooper and Dr. Yaroshevsky as conflicting. In such a situation the Tribunal is required to explain why it attaches more weight to one opinion than the other. Even if the Tribunal fails to explain itself, this Court, when judicially reviewing the s decision, must consider the Record to see if an explanation emerges.

[57] In Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, the Court emphasized:

[3] …that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. (Construction Labour Relations, at para. 3).

[58] The Applicant submits that the Tribunal misapprehended the evidence of Dr. Cooper.

[59] I reject this submission.

[60] The Tribunal understood the evidence of Dr. Cooper and his diagnosis. The Tribunal did not accept Dr. Cooper’s diagnosis and gave its reason for that conclusion. Even if this Court disagreed with the Tribunal’s decision concerning the significance of Dr. Cooper’s evidence, it could not substitute its opinion for the Tribunal’s opinion. Finally, even if the Tribunal in reaching its conclusion about Dr. Cooper’s evidence failed to mention an item of relevant evidence, where the standard of review is reasonableness, the court cannot conclude that the Tribunal failed to consider all the evidence: see Newfoundland and Labrador Nurses' Union, at para 12.

The Tribunal reasonably concluded that the “Apple incident” was an action of the applicant’s employer relating to the applicant’s employment.

[61] The Applicant submitted that it was unreasonable for the Tribunal to decide that the previously referred to “Apple incident” was non-compensable.

[62] I reject this submission.

[63] It was open to the Tribunal on the evidence before it to conclude that the “Apple incident” was the culminating incident which caused the Applicant to decide to stop working in November 2011 and retire in January 2012. In making this finding the Tribunal indicated the evidence upon which it relied; namely the Applicant’s statements at the ARO hearing.

[64] It was open to the Tribunal to determine that this culminating event was related to the employer’s actions relating to the worker’s employment because the Apple incident occurred when a TTC investigator attempted to initiate disciplinary action against the Applicant for eating while driving his bus.

[65] Additionally, it was open to the Tribunal to conclude that there could be no entitlement for this culminating incident under the WSIA because it was related to the employer’s actions relating to the workers employment. Section 13(5) of WSIA provides that a worker is not entitled to benefits for mental stress caused by decisions or action of the worker’s employer relating to the worker’s employment.

Conclusion

[66] This application is dismissed with costs in the amount of $6000 payable by the Applicant to the respondent Toronto Transit Commission.

MARROCCO A.C.J.S.C.

I agree _______________________________

GORDON R.S. J.

I agree _______________________________

MORAWETZ R.S. J.

Date: