Colella v. Ng, 2024 ONSC 2365

CITATION: Colella v. Ng, 2024 ONSC 2365

DIVISIONAL COURT FILE NO.: 024/23

DATE: 20240425

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

E. Stewart, Sachs and Tzimas JJ.

B E T W E E N:

FRANK COLELLA and DEBORAH CZANK

Applicants

(Respondents to the Workplace Safety and Insurance Act Section 31 Right to Sue Application)

• and -

CHI W. NG and CITY OF TORONTO

Respondents

(Applicants to the Workplace Safety and Insurance Act Section 31 Right to Sue Application)

• and -

WORKPLACE SAFETY AND INSURANCE TRIBUNAL

Respondent

Matthew J. Sutton, for the Applicants (Respondents to the Workplace Safety and Insurance Act Section 31 Right to Sue Application)

Robert W. Traves and Jonathan Thoburn, for the Respondents (Applicants to the Workplace Safety and Insurance Act Section 31 Right to Sue Application)

Chris G. Paliare and Mannu Chowdhury, for the Respondent Workplace Safety and Insurance Tribunal

HEARD at Toronto: October 24, 2023

E. STEWART J.

REASONS FOR DECISION

Nature of the Application

1The Applicants seek judicial review of the decisions of the Workplace Safety and Insurance Tribunal (the “Tribunal”) dated July 6 and December 15, 2022 that resulted in a determination that the Applicant, Frank Colella (“Colella”) was barred from proceeding with a civil action claiming damages for negligence from the Respondents, the City of Toronto (“City”) and Chi W. Ng (“Ng”).

2Colella’s civil action arises out of a motor vehicle accident on January 21, 2014 in which he was struck by a dump truck owned by the City and driven by Ng, a City employee. The Applicants have commenced an action in the Superior Court of Justice claiming damages from the City and Ng for injuries sustained by Colella as a result of the accident.

3In their Statement of Defence the City and Ng plead that, because Colella was in the course of his employment at the time of the accident, his civil action is barred by the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “Act”). His recourse is to claim all compensation benefits available to him pursuant to the Act.

4In a proceeding before the Tribunal initiated by the Respondents, the Tribunal determined that Colella was entitled to benefits pursuant to the Act and agreed with the Respondents that his civil action against them was barred by s. 28(2) of the Act.

5In response to Colella’s request for reconsideration of the decision, the Tribunal determined that the test for granting a reconsideration request had not been met.

6The Applicants have brought this application for judicial review of these Tribunal decisions and request an order that they be quashed.

7The Respondents submit that this application should be dismissed.

Background Facts

8On the day of the accident, Colella was an employee of the City and was working at his office at 1026 Finch Avenue West. Ng was driving a dump truck on that same day in the course of his employment duties for the City.

9Colella left his office briefly to go to a nearby bank branch to conduct personal banking business. While walking back to his office, Colella was struck by the dump truck driven by Ng.

10As a result of the accident, Colella suffered personal injuries that required him to undergo surgery, undertake rehabilitation and receive ongoing care.

11Following the accident, the City completed the required Employer’s Report for filing with the Workplace Safety and Insurance Board (“WSIB”). Colella filed a corresponding Worker’s Report of Injury with the WSIB.

12On February 4, 2014, a WSIB case manager denied Colella’s claim for benefits on the grounds that he was not in the course of his employment at the time of the accident. Colella took no steps to challenge that denial.

13On January 16, 2016, Colella commenced a civil action in the Superior Court of Justice and claimed damages from the City and Ng resulting from the accident. Colella’s wife, the Respondent Deborah Czank (“Czank”), also claimed damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

14The City and Ng have defended the civil action and deny any liability for the accident.

The Decisions of the Tribunal

15On June 1, 2021, the City and Ng submitted an application to the Tribunal for determination of the issue of whether Colella was barred from proceeding with any civil action by virtue of s. 28(2) of the Act.

16Section 28(2) of the Act states as follows:

Certain rights of action extinguished

28(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. The worker’s Schedule 2 employer.

2. A director, executive officer or worker employed by the worker’s Schedule 2 employer.

17The City is a Schedule 2 employer that employs Colella. As noted above, Ng is also a worker employed by the City.

18The Tribunal’s determination of whether or not Colella was barred from bringing a claim against the City hinged on the question of whether Colella was “in the course of employment” when he was struck by the truck driven by Ng as provided for in the Act.

19In making the determination as to whether Colella was in the course of employment, the Tribunal referred to the WSIB Operational Policy Manual 15-02-02 (the “OPM”) which provides some guidance on when an accident will be found to be in the course of employment. The OPM provides that the determination of that question will depend primarily on the circumstances relating to place, time and activity surrounding the accident.

20The undisputed fact is that Colella was near, but not at, his place of work when he was injured.

21It is also undisputed that the accident occurred during Colella’s regular work hours, albeit on a break.

22The interpretation and application of the “activity surrounding the accident” criterion depends on a consideration of whether Colella’s brief trip to and from the bank should be considered to have been in the course of his employment.

23The Tribunal considered the facts submitted in light of all these factors and concluded that Colella’s activity was in the course of employment when the accident occurred. In doing so, it relied upon all the evidence, including the fact that Colella had been issued a cell phone by the City that he was required to carry at all times during his workday and to answer when it rang, even while on a break. Colella’s employment responsibilities therefore required him to be reachable by telephone in order to address any job-related issues that arose, even while on a break or at lunch.

24As a result of this analysis, the Tribunal found that the City retained control over Colella while he walked to and from the bank when the accident took place. It noted that Colella’s short walk from his office to the bank and back was only a brief interlude that happened in close proximity to his place of work and while he remained in potential contact with his office and clients, as was expected of him. Accordingly, his activity was found to be within the course of his employment.

25As a further result of this determination, and pursuant to s. 31(1)(1)(c) of the Act, the Tribunal found that Colella was entitled to claim all available WSIB benefits for the injuries sustained by him in the accident. These benefits are assessed under the Act without the need to prove negligence against others involved in the accident, and without any risk that Colella might be found to be partially or fully responsible for it.

26Because the Tribunal found that Colella was a worker in the course of his employment at the time of the accident, he was barred by the Act from pursuing the civil action commenced by him against the City and Ng.

27Colella requested a reconsideration of the Tribunal’s decision.

28In its reconsideration decision, the Tribunal noted that a high threshold must be met when a request to reconsider a decision is made. The Act does not provide parties with any absolute right to have a decision reconsidered. Instead, s. 129 of the Act gives the Tribunal the discretion to reconsider a decision “if it considers it advisable to do so.” A request for reconsideration must demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being reopened. The Tribunal noted that this test had been upheld by the Divisional Court in Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919.

29In its reconsideration decision, the Tribunal expressed its determination that Colella had not raised any fundamental error of law or process that would, if corrected, likely produce a different result. The decision sought to be reconsidered had appropriately acknowledged that the accident took place off work premises but had provided a reasonable and coherent analysis to arrive at its conclusion that, based on all of the surrounding circumstances, Colella was in the course of employment when the accident occurred.

30The Applicants bring this application for judicial review to challenge the Tribunal’s decisions and to seek an order setting them aside.

Jurisdiction

31This Court has jurisdiction to hear this application for judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2 and 6(1).

Standard of Review

32The parties agree that the applicable standard of review is reasonableness. The burden is on the Applicants to show that the decisions were unreasonable (see: Canada (Minister of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR. 653).

Discussion

33The Applicants submit that the Tribunal decisions are unreasonable. They argue that it was unreasonable for the Tribunal to purport to apply the OPM and then to determine that “retained authority” was the dominant factor for finding that Colella was in the course of employment at the time the accident occurred.

34The Applicants further submit that the Tribunal unreasonably disregarded the factors that the OPM suggests should be considered and maintain that the factors that Colella was at a location that had nothing to do with his work, was engaged in personal activity, and was not engaged in any work activity at the time of the accident were not assigned proper significance by the Tribunal.

35The Applicants also submit that prior decisions of the Tribunal had required a significant relationship between the activity and the worker’s duties to be shown before arriving at a conclusion that retained authority existed. In particular, they submit that the Tribunal had unreasonably distinguished several previous Tribunal decisions which had found that where an accident occurs during a lunch break, off the work site and the employee had not been engaged in a work-related task, such activity is generally not found to be in the course of employment.

36The Applicants ultimately argue that carrying a work-provided cell phone should not have been deemed to have created a work-related purpose when an individual is on a break unless a work-related call was actually received. For the Tribunal to have concluded otherwise is unreasonable, they argue, as it overturns substantive employee rights and causes significant adverse consequence to workers, “tethering” them to their work regardless of their place, time and activity.

37In response, the City notes that this Court has consistently taken a highly deferential attitude towards Tribunal decisions “and will only interfere where there are no lines of reasoning that would support the decision under review” (see: Blatz v. Workplace Safety and Insurance Appeals Tribunal, 2016 onsc 7259).

38The City submits that the Tribunal decision in this case was reasonable, as the Tribunal considered the relevant policies and rationally applied them to the undisputed facts. In particular, the Tribunal considered place, time and activity in determining whether Colella was in the course of employment at the time of the accident.

39The Tribunal ultimately determined that the City retained control over Colella during his lunch break by requiring him to carry and answer a cell phone at all times if contacted for work-related purposes. The Tribunal recognized the comparative novelty of the case and considered the earlier case law and its possible application to the specific facts of the case. The Tribunal addressed all of the cases dealing with the concept of retained authority relied on by Colella and found on the facts before it that the City did retain authority over him even while offsite and on a break. The Tribunal concluded that Colella was therefore in the course of employment at the time of the accident.

40The Tribunal also responded to this application to provide assistance to the court in understanding the nature of the Act and the Tribunal’s role as a specialized decision-maker on the subject of workplace injuries. As set out in its comprehensive factum, the Tribunal submitted that courts have consistently held that significant deference is owed to the decisions of tribunals that are within its area of expertise. Further, the Court of Appeal for Ontario has described the Tribunal as having “the toughest privative clause known to Ontario law” (see: Liverpool v. (Ontario) Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 2286, at para. 28 (“Liverpool”), citing Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, 92 O.R. (3d) 757, at para. 22, leave to appeal refused, [2008] S.C.C.A. No. 541).

41Counsel for the Tribunal submits that when a specialized tribunal interprets policies connected to its area of specialization, such interpretations are owed deference. A court dealing with an application for judicial review of such interpretation generally should not “second-guess” them (see: Liverpool, supra). As a general proposition, an administrative tribunal holds the upper hand when a court is reviewing a tribunal’s interpretation of its own statute. I agree with the Tribunal the same logic applies to a tribunal’s interpretation of its own policies to the extent that they have been placed in issue (see: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900).

42I agree with counsel for the Tribunal that the policies referred to in the decisions under review have no necessary binding force on the Tribunal. Even if they were so binding, the Tribunal would have been required to consider whether and how they might be applied with regard to the facts and unique circumstances of the case before it, as was done here. In this case, the Tribunal carefully reviewed those policies and relevant past decisions and properly considered whether they applied to this particular case.

43In my view, when subjected to a review using the requirements for reasonableness as set out in Vavilov, supra, the Tribunal’s decision dated July 6, 2022 bears all of the hallmarks of reasonableness. It sets out the relevant statutory provisions and policies applicable to the decision. It reviews the evidence that was before the Tribunal at some considerable length and sets out a rational path for arriving at its factual findings. It comprehensively applies the facts of the case to its policies to determine whether the accident happened during the course of employment. It grapples with the competing prior decisions and arguments provided and sets out its reasons for not accepting the decisions cited by Colella as being binding or even necessarily persuasive. The outcome of the decision falls within the range of acceptable outcomes given the facts and the applicable law.

44The decision on reconsideration reviewed and considered the arguments put forward by Colella and determined that no error in the Tribunal’s first decision had been shown. Accordingly, the Tribunal declined to overturn it. For the same reasons, I view that decision as being likewise reasonable.

45In the end result, I am of the opinion that the Applicants have not succeeded in discharging the burden upon them to demonstrate that these decisions were unreasonable. No adequate basis has been shown that would justify interference by this Court with the decisions of the Tribunal in this case.

Conclusion

46For these reasons, this application is dismissed.

Costs

47The parties have agreed that there should be no costs resulting from the determination of this application, and WSIAT does not seek costs. Accordingly, there will be no costs ordered against any party.

E. Stewart J.

I agree _______________________________

Sachs J.

I agree _______________________________

Tzimas J.