CITATION: Easby v. Workplace Safety and Insurance Appeals Tribunal, 2024 ONSC 3669
DIVISIONAL COURT FILE NO.: DC-20-15
DATE: 20240627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Fregeau, and Trimble JJ.
BETWEEN:
JOHN EASBY
Applicant
– and –
WORKPLACE SAFETY and INSURANCE APPEALS TRIBUNAL
Respondent
Marcus A. Lennox, for the Applicant
Mannu Chowdhury, for the Respondent
HEARD: April 23, 2024, in London
FREGEAU J.
reasons ON APPLICATION for judicial review
INTRODUCTION
[1] The applicant, John Easby (the “applicant”) applies for judicial review of a series of decisions of the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT” or the “Tribunal”), all of which affirmed the Tribunal’s denial of the applicant’s entitlement to Loss of Earnings benefits (“LOE”) under s. 43 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “Act”). The decisions under review are:
• WSIAT Decision No. 2712/18, dated September 20, 2018, reported at 2018 ONWSIAT 3021 (the “2018 Decision”);
• WSIAT Decision No. 2712/18R, dated February 27, 2019, reported at 2019 ONWSIAT 540 (the “2019 Reconsideration Decision”);
• WSIAT Decision on Request for Reconsideration of Decisions No. 2712/18 and 2712/18R, dated May 29, 2019 (the “Corbett Reconsideration”); and
• WSIAT Decision on Request for Reconsideration of Decisions No. 2712/18 and 2712/18R, dated August 8, 2019 (the “McCutcheon Reconsideration”).
[2] These four decisions are herein collectively referred to as “the Decisions”.
BACKGROUND
[3] In 1973, the applicant began working for a textile manufacturer. By the mid-1980s, he had developed work-related hearing loss in his right ear and was granted entitlement to a permanent disability pension (“PD pension”) for this permanent right ear disability.
[4] In 1995, the applicant began working for a steel tubing manufacturer (the “employer”). On June 8, 1998, the applicant injured his right shoulder at work and made a claim for compensation benefits. The Workplace Safety and Insurance Board (the “Board”) determined that the applicant’s right shoulder was permanently impaired because of the workplace accident and that the applicant was therefore entitled to a non-economic loss award as compensation for this permanent impairment.
[5] Subsequent to the applicant’s right shoulder impairment, the employer provided the applicant with a series of modified jobs in the manufacturing area of the plant. During this period, the applicant developed non-compensable hearing loss in his left ear due to the onset of Meniere’s disease. By 1999, the applicant’s overall hearing loss had become severe and the employer determined that it was no longer safe for the applicant to work in the manufacturing area. The employer therefore provided the applicant with a job in the stores department where he would take requisitions from other workers in need of parts and materials.
[6] In 2002, the employer decided that it was no longer feasible for the applicant to continue to work in the stores department. An agreement was reached between the applicant and the employer which resulted in a “buy out”, pursuant to which the employer paid the applicant one year’s salary and the applicant resigned his employment effective August 1, 2002.
[7] Following his resignation, the applicant requested entitlement to a pension supplement for his right ear disability. This claim was initially denied by the WSIB but allowed on appeal to the Tribunal on the basis that the applicant stopped working in August 2002 because of a combination of his compensable and non-compensable hearing loss.
[8] In 2017, the applicant requested LOE benefits as of August 1, 2002, pursuant to s. 43 of the Act, in relation to his right shoulder impairment. The applicant claimed that his right shoulder impairment had contributed to his wage loss beyond August 1, 2002, and that he was therefore entitled to LOE benefits as of that date. This claim was denied by a WSIB Case Manager.
[9] The applicant’s objection to the Case Manager’s decision was referred to an Appeals Resolution Officer (“ARO”) who ruled that the applicant was not entitled to LOE benefits because his right shoulder impairment was not the cause of his wage loss following August 1, 2002. The ARO found, in part, as follows from the 2018 Decision, at para. 8:
There is little cogent, reliable and persuasive evidence before me to suggest that the [applicant]’s work-related right shoulder injury was a significant contributing factor to his resignation from employment with the employer on August 1, 2002.
[10] The applicant appealed the Board’s decision to the Tribunal. In the 2018 Decision, at para. 11, the Tribunal denied LOE benefits to the applicant. The Tribunal framed the question on the appeal before it “whether or not the [applicant]’s loss of earnings as of August 1, 2002, when he resigned from work, was ‘as a result’ of his right shoulder injury.”
[11] The Tribunal agreed with the ARO that the applicant’s loss of earnings as of August 1, 2002, was not due to his right shoulder injury. The Tribunal held that the reason the applicant stopped working on August 1, 2002, was due to the combined effects of his compensable and non-compensable hearing loss and that “the right shoulder impairment itself did not significantly factor into the worker’s decision to stop working on August 1, 2002, and, accordingly was not a factor that contributed in any significant way to the wage loss he experienced after that date”.
[12] Vice-Chair Kalvin concluded the 2018 Decision as follows, at para. 23:
[I]n my assessment, based on the evidence in this case, it is more likely than not the [applicant]’s right shoulder impairment did not significantly factor into the decision to resign from his employment in August 2002. Accordingly, I am unable to find that the [applicant] sustained a loss of earnings as of August 1, 2002 that was “as a result “of his right shoulder injury. The [applicant] is therefore not entitled to LOE benefits in relation to that injury.
[13] The applicant sought a reconsideration of the Tribunal’s 2018 Decision which was denied by the Tribunal on February 27, 2019. In the 2019 Reconsideration Decision, the Tribunal stated that the 2018 Decision clearly determined that it was the non-compensable progression of the applicant’s hearing loss that resulted in the applicant’s resignation from employment. Vice-Chair Dee held as follows, at para. 22:
[T]he [applicant] … was found capable of replicating his pre-injury earnings following the [right shoulder injury] and he was therefore not entitled to LOE benefits. This situation continued until the progression of a non-compensable hearing loss resulted in the [applicant]’s loss of employment.
[14] On March 24, 2019, the applicant submitted a second reconsideration request. In the Corbett Reconsideration, Tribunal Chair Corbett specifically focused on the applicant’s submission that the Tribunal, in the 2018 Decision and the 2019 Reconsideration Decision, had “erred in denying LOE entitlement to the [applicant] by not applying the “but for” test and in particular, that but for the right shoulder the worker would have continued in his 1998 employment and that the right shoulder injury was a significant contributing factor to the [applicant]’s loss of earnings”.
[15] In the Corbett Reconsideration, Tribunal Chair Corbett found that the 2019 Reconsideration Decision had “considered and rejected” the submission that the right shoulder impairment made a significant contribution to the applicant’s ongoing LOE entitlement after August 2002, and specifically “considered the issue of the correct test to be applied on appeal for entitlement for loss of earnings benefits under s. 43 of the [Act]”.
[16] Tribunal Chair Corbett found that the applicant’s submissions in support of the reconsideration before him “repeat and recast” the arguments before the Tribunal in the 2019 Reconsideration Decision and that they were for the most part a re-argument of the appeal. Tribunal Chair Corbett noted that the reconsideration process allows for a decision to be reviewed where there is a fundamental error of law or process which, if corrected, would likely result in a different decision and that it is not intended as a forum in which an appeal can be re-argued, which he found the applicant was doing on this reconsideration.
[17] Tribunal Chair Corbett, finding no fundamental error of law or process, upheld the 2018 Decision and the 2019 Reconsideration Decision and rejected the reconsideration request before him.
[18] On June 11, 2019, the applicant submitted a further request for reconsideration to the Tribunal. Alternate Chair McCutcheon responded to this in the McCutcheon Reconsideration. After succinctly summarizing the history of the matter, Alternate Chair McCutcheon noted that the 2018 Decision set out the key findings of fact at paras. 14-22 and the Tribunal’s conclusion at para. 23:
Based on the evidence in this case, it is more likely than not the [applicant]’s right shoulder impairment did not significantly factor into the decision to resign from his employment in August 2002. Accordingly, I am unable to find that the worker sustained a loss of earnings “as a result of his shoulder injury.”
[19] Alternate Chair McCutcheon further found that the 2019 Reconsideration Decision and the Corbett Reconsideration addressed the applicant’s arguments and explained the reasons for the respective decisions.
[20] Finally, Alternate Chair McCutcheon addressed the “primary appeal issue of significant contribution to loss of earnings”, as set out in the applicant’s June 11, 2019, second request for reconsideration. Alternate Chair McCutcheon stated that the 2018 Decision, the 2019 Reconsideration Decision and the Corbett Reconsideration “speak for themselves on this issue” such that there was “no need for further clarification”.
THE STANDARD OF REVIEW
[21] The applicant and respondent agree that the applicable standard of review on this application is reasonableness.
[22] On a reasonableness review, the court determines whether the decision bears the “hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in the relevant factual and legal constraints that bear on the decision. Unreasonable decisions are those that contain at least one of two fundamental flaws: (1) a failure of rationality internal to the reasoning process; and/or (2) is in some respect untenable in light of relevant factual and legal constraints: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 99, 101.
THE POSITIONS OF THE PARTIES
The Applicant
[23] The applicant submits that the test for determining whether a worker has suffered a loss of earnings “as a result of injury” within the meaning of s. 43(1) of the Act is the “but for” or “significant contributing cause” test. The applicant contends that the 2018 Decision did not apply the “significant contributing cause” test when determining whether the applicant suffered a loss of earnings after August 1, 2002, due to his right shoulder impairment.
[24] The applicant submits that the 2018 Decision incorrectly focused on the “precipitating injurious condition” (i.e., the applicant’s hearing loss) in determining why the applicant stopped working effective August 1, 2002, and that the 2018 Decision is therefore unreasonable.
[25] The applicant further submits that the 2019 Reconsideration Decision omitted any reference to the “but for” legal test for entitlement to s. 43 LOE benefits, that the Corbett Reconsideration incorrectly found that the 2019 Reconsideration had in fact properly applied the “but for” test and that the McCutcheon Reconsideration simply endorsed the three previous incorrect decisions, such that all are unreasonable.
The Respondent
[26] The respondent submits that the applicant, while agreeing that the standard of review is reasonableness, nonetheless takes the court on a “line-by-line treasure hunt” for peripheral errors in the Decisions, exactly what the Supreme Court of Canada warned against in Vavilov. The respondent submits that the applicant has failed to identify a fundamental flaw in any of the Decisions and that he is essentially requesting that this court conduct a de novo appeal, which is not court’s proper role on judicial review.
DISCUSSION
[27] The applicant’s initial claim for LOE benefits as of August 1, 2002, in relation to his right shoulder impairment, was denied by a WSIB Case Manager. The applicant’s objection to this decision was referred to an ARO. At this initial stage, the applicant’s claim was rejected by the ARO because the ARO found that there was essentially no evidence to support the claim that the applicant’s right shoulder injury was a “significant contributing factor” (emphasis added) to his August 1, 2002, resignation.
[28] In the 2018 Decision, at para. 22, the Tribunal found that the applicant’s right shoulder impairment did not significantly factor into the applicant’s decision to stop working on August 1, 2002, and that the right shoulder impairment was not a factor that contributed in any significant way to the wage loss that he experienced after August 1, 2002.
[29] At para. 23 of the 2018 Decision, the Tribunal found that the evidence was clear that the reason the applicant resigned on August 1, 2002, was because of his hearing impairment. The Tribunal concluded that “it is more likely than not that the [applicant]’s right shoulder impairment did not significantly factor into the decision to resign from his employment in August 2002” (emphasis added) and that the applicant therefore did not sustain a loss of earnings “as a result of” his right shoulder injury.
[30] At para. 22 of the 2019 Reconsideration Decision, the Tribunal found that the applicant could replicate his pre-injury earnings after the date of the right shoulder injury and until the progression of his hearing loss resulted in the applicant’s loss of employment on August 1, 2002. This is simply another way of expressing that the right shoulder impairment was not a significant contributing factor in the applicant’s decision to accept a “buy out” and to resign on August 1, 2002.
[31] The Corbett Reconsideration carefully considered the earlier decisions in light of the applicant’s submission that the Tribunal had erred in failing to apply the “but for” or “significant contributing cause” test in relation to the applicant’s right shoulder impairment when denying his claim for s. 43 LOE benefits. In my view, the Corbett Reconsideration comprehensively and coherently explained to the applicant how the 2018 Decision and the 2019 Reconsideration Decision had in fact done so.
[32] The McCutcheon Reconsideration reviewed the basis for the Tribunal’s dismissal of the applicant’s appeal of the ARO’s denial of s. 43 LOE benefits, as set out in the 2018 Decision, that being that the applicant’s right shoulder impairment did not significantly factor into his decision to resign from employment in August 2002.
[33] The McCutcheon Reconsideration went on to address both the 2019 Reconsideration Decision and the Corbett Reconsideration and found that they fully and correctly explained the reasons why the requests for reconsideration were dismissed.
[34] The McCutcheon Reconsideration specifically responded to the applicant’s request for a response to what he characterized as the “primary appeal issue of significant contribution to loss of earnings” by stating that the three previous decisions “speak for themselves on this issue”.
[35] In my view, the 2018 Decision is the correct focus of this application for judicial review. The 2018 Decision properly applied the “significant contributing cause” test when determining that the applicant’s wage loss after August 1, 2002, was not caused in any significant way by his right shoulder injury and that this wage loss was therefore not “as a result of” his right shoulder impairment within the meaning of s. 43 of the Act. The 2018 Decision is justifiable, transparent, and intelligible. It is supported by the factual background, it is based on internally coherent reasoning, and it contains no fundamental flaws or errors. I find that the 2018 Decision is therefore reasonable.
[36] The 2019 Reconsideration Decision, the Corbett Reconsideration and the McCutcheon Reconsideration each address the applicant’s submissions and logically and coherently explain why they endorse the 2018 Decision and reject the reconsideration requests. I find that these three decisions are also reasonable.
[37] The application is dismissed. As the respondent is not seeking costs, I make no order as to costs.
Fregeau J.
I agree _______________________________
Lococo J.
I agree _______________________________
Trimble J.
Released: June 27, 2024
CITATION: Easby v. Workplace Safety and Insurance Appeals Tribunal, 2024 ONSC 3669
DIVISIONAL COURT FILE NO.: DC-20-15
DATE: 20240627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Fregeau, and Trimble JJ.
BETWEEN:
JOHN EASBY
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
REASONS ON APPLICATION FOR JUDICIAL REVIEW
FREGEAU J.
Released: June 27, 2024