Court File and Parties
CITATION: Li v. Kiriakos, 2026 ONSC 3804
DIVISIONAL COURT FILE NO.: 360/25 JR
SUPERIOR COURT OF JUSTICE – ONTARIO - DIVISIONAL COURT
RE: ZONGEN LI, Applicant
AND:
MARIA KIRIAKOS, ANA RODRIGUEZ GARCIA, GARTH DEE, CARMINE SACCO, ZOE AGNIDIS & ROSEMARIE MCCUTCHEON and the WSIAT, Respondents
BEFORE: D.L. Corbett, McKelvey, and O’Brien JJ.
COUNSEL: Zongen Li, Self-Represented Applicant
Rebecca Woodrow and Ryan Figueira, Counsel for the Respondents
HEARD at Toronto: April 20, 2026
ENDORSEMENT
Nature of Proceedings
1This is an application for judicial review of decisions by the WSIAT providing procedural direction and dismissing the appeals brought by Mr. Li of the WSIB’s quantification of his benefits resulting from a knee injury. The WSIAT generally upheld the WSIB’s findings, but recognized that there was an ongoing process at the WSIB to re-evaluate the extent of his injuries based on a March 11, 2020 physiotherapy report and that his benefits could be varied on this basis.
2Mr. Li makes numerous arguments that the decisions by the WSIAT are illegal, that they violate procedural fairness, as well as his Charter/human rights, and that the Tribunal members were under a conflict of interest that raises a reasonable apprehension of bias. Beyond that he argues that they were incorrect and made findings of fact based on no evidence or falsified/improper evidence. He asks that the decision be quashed, that this Court declare that the WSIAT and the individual respondents violated his Charter/human rights and that he be awarded damages for those violations.
Background
3Mr. Li injured his left knee at work on August 16, 2011. He sought benefits under the Workplace Safety and Insurance Act (“WSIA”) which were approved. The Workplace Safety and Insurance Board (“WSIB”) found that he had fully recovered as of November 30, 2011, at which time his benefits were terminated. However, a subsequent MRI revealed a meniscal tear and, on appeal, the WSIAT granted Mr. Li loss of earnings (LOE) benefits and an award for non-economic loss (NEL) was granted. The specifics of these benefits were returned to the WSIB for determination. The WSIB calculated Mr. Li’s benefits in various decisions. It determined Mr. Li had reached maximum medical recovery from his injury as of April 12, 2012 and was entitled to a 2% NEL award. The WSIB also reached various determinations regarding Mr. Li`s LOE entitlements, including that by August 16, 2017, he would have been able to exceed his pre-injury earnings doing tool and die work. The LOE benefits therefore were stopped as of that date. Mr. Li appealed these decisions, first internally within the WSIB, and when these appeals were denied, he brought further appeals to the WSIAT, where the four separate appeals were combined into one proceeding.
4In those appeals Mr. Li brought numerous procedural and substantive objections to the process followed by both the WSIB and the WSIAT. He alleged that these procedures violated his Charter/human rights. He complained about the inclusion of a medical discussion paper in the appeal record. The Tribunal found that it did not have jurisdiction to address the WSIB’s internal process, or to award damages under the Charter or the Human Rights Code. It found that the medical discussion paper was properly included in the appeal record.
5Mr. Li also alleged a bias on behalf of the Tribunal and sought recusal of the Tribunal members, which was denied. He also argued that the WSIB had failed to account for the March 2020 physiotherapy report in quantifying his benefits. The Tribunal found that it did not have jurisdiction over the WSIB’s internal processes, and that review of the physiotherapy report was ongoing. The Tribunal went on to consider the merits of Mr. Li’s appeals and found them largely unsubstantiated, but that the WSIB was still re-evaluating his injuries based on the March 2020 physiotherapy report. His appeals were each denied with the caveat that if the WSIB does determine that his injuries are more severe than it had originally estimated, the amounts of benefits could be varied. His request to have that result varied based on his claim that it had violated his Charter/human rights was also unsuccessful.
6The following issues are raised on this judicial review:
- Did the Tribunal’s decision to follow the practice direction to separate consideration of the appeal’s merits from the Charter/human rights allegations render the proceeding procedurally unfair?
- Was the Tribunal’s finding that it does not have jurisdiction to grant the remedies requested for benefits after December 2011 reasonable/correct?
- Did the Tribunal’s failure to consider the March 2020 physiotherapy report render the decisions unreasonable?
- Did the Tribunal’s inclusion of the medical discussion paper render the decision unreasonable?
- Were the Tribunal’s findings of fact unreasonable?
- Do the Tribunal members have a conflict of interest or raise a reasonable apprehension of bias?
- What is the appropriate remedy if Mr. Li is successful on this application?
Standard of Review
7The applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In applying the reasonableness standard, the court is not to determine what decision it would have made were it the administrative decision-maker. Rather, the court begins with the Tribunal’s decision. A decision is required to exhibit justification, intelligibility and transparency; the reviewing court does not engage in a “treasure hunt for error”.
8Both this Court and the Court of Appeal for Ontario have repeatedly emphasized the strength of the privative clause in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 and the corresponding high degree of deference to be afforded to the WSIAT. See for example Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, at para. 22.
9The WSIAT’s decisions are final as per s. 123(4) of the WSIA. The Tribunal has the discretion to reconsider its own decisions, if it considers it advisable to do so (as per s. 129). The Tribunal’s reconsideration process is not an appeal, but is a discretionary process. A high threshold must be met for reconsideration to succeed. See for example Gowling v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2004] O.J. No. 919, at para. 23.
10For the reasons which follow, I have concluded that this application should be dismissed.
Issue #1: Did the Tribunal’s decision to follow the practice direction to separate consideration of the appeal’s merits from the Charter/human rights allegations render the proceeding procedurally unfair?
11Mr. Li argues that the Tribunal’s decision to follow its practice direction in first considering the merits of his appeal and reaching a decision on those issues, and then subsequently considering the Charter/human rights issues in a separate decision was procedurally unfair. He suggests that this was done in bad faith, and illegally distorted the WSIA as it was done to avoid actually addressing his Charter/human rights arguments. In its decision dated January 23, 2023, the Tribunal dealt with this issue.
12In its decision dated January 12, 2023, the Tribunal noted that its authority under s. 123 of the WSIA is restricted to determining the worker’s entitlement to benefits under the WSIA. If it is necessary for the Panel to consider the provisions of the Charter and the Ontario Human Rights Code in order to determine the worker’s entitlement to benefits under the WSIA, the Tribunal has jurisdiction to do so. However, the Tribunal went on to note that if the worker believes that the actions of individuals either at the WSIB or at the Appeals Tribunal have violated his rights under the Charter or the Human Rights Code, his remedy, if one exists, cannot be contained in this benefit appeal under the WSIA, “because the Panel only has the authority to award benefits under the WSIA”. The Tribunal went on to state
In addition, if a prior decision of the WSIB regarding the worker’s benefit entitlement is incorrect, while the Appeals Tribunal has the ability to correct that decision, the Tribunal does not have the authority to award any further remedy based upon a finding that the earlier decision may have violated the worker’s rights under the Charter or the Human Rights Code. The Panel has no authority for example to make an order for aggravated or punitive damages, costs, or other damages based upon a violation of the worker’s Charter or human rights.
13I would note that this statement is consistent with s. 123 of the WSIA which provides as follows:
(1) The appeals Tribunal has exclusive jurisdiction to hear and decide
(a) all appeals from final decisions of the Board with respect to entitlement to healthcare, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;
(b) all appeals from final decisions of the Board with respect to transfer of costs, and employer’s classification under the insurance plan and the amount of the premiums and penalties payable by a schedule one employer and the amounts and penalties paid by a schedule two employer;
(c) such other matters as are assigned to the appeals Tribunal under this act.
14The WSIAT has the authority to control its own process. Its practice direction allows for the efficient treatment of human rights and Charter issues because it provides that those issues will only be addressed if needed once a final decision on the other issues in the appeal have been made. The deferral of a consideration of any potential violation of the Applicant’s human rights or Charter rights until after the initial determination is procedurally fair given that this area of appeal is not being taken away, but rather deferred until after the worker’s entitlement to benefits has been considered. It is also reasonable that the WSIAT limit its consideration to the worker’s entitlement to benefits under the WSIA. In this case, the Applicant’s allegations of Charter and human rights violations were fully considered in a subsequent WSIAT decision. I would not give effect to this ground of review.
Issue #2: Was the Tribunal’s finding that it does not have jurisdiction to grant the remedies requested for benefits after December 2011 reasonable?
15In its decision dated October 31, 2024, the Tribunal noted that all of the decisions the WSIB had made concerning the worker’s ability to perform post-accident work were made based on the nature of the worker’s knee injury as it existed on April 12, 2012, which was identified as the date of maximum medical recovery (“MMR”). This was despite the fact that the content of a physiotherapy report dated March 11, 2020 indicated that the worker had a significantly worse knee impairment than was present in 2011 and a finding that the content of this report would need to be reviewed by the WSIB’s operating area to determine if the findings were related to the injury of August 16, 2011. The Tribunal went on to note that until the issue of a possible deterioration in the worker’s condition had been determined, a final fair and appropriate resolution of the worker’s claim could not take place.
16The Tribunal considered but rejected the option of adjourning its final decision in this matter until there had been a final decision of the WSIB regarding the apparent deterioration worker’s left knee condition. The panel then proceeded to determine the issues based on an assumption that the worker’s worsened left knee condition that was evident in the physiotherapy report of March 11, 2020 was not recognized as being related to the worker’s workplace accident of August 16, 2011. Based on these assumptions the Tribunal confirmed the assessment of the worker’s entitlement to benefits, but cautioned that should the worker be successful in having a greater degree of impairment of his left knee recognized as being caused by his workplace accident, his entitlement to benefits might change. In this regard the Tribunal stated in its decision of October 31, 2024
The worker's appeal for increased loss of earnings entitlement from December 11, 2011 until he reaches age 65 is denied. However, should the worker be successful in having a greater degree of impairment of his left knee be recognized as being caused by his workplace accident, the worker may request from the WSIB a further review of his LOE entitlement from the accepted date of deterioration.
17I have reviewed the Tribunal’s decision based on the assumptions made as noted above. It was reasonable for the Tribunal to defer any determination related to the March 11, 2020 physiotherapy report considering the ongoing process at the WSIB related to that report. Under s. 123(1) of the WSIA, the Tribunal only has jurisdiction over appeals from final WSIB decisions. I do not see any basis to interfere with the Tribunal’s decision on the worker’s entitlement.
Issue #3: Did the Tribunal’s failure to consider the March 2020 physiotherapy report render the decisions unreasonable?
18This issue is a restatement of issue #2. For the reasons expressed above, the Tribunal’s decision that the WSIB process was not complete respecting the claim to a worsened injury, based on the 2020 physiotherapy report, is reasonable.
Issue #4: Did the Tribunal’s inclusion of the medical discussion paper render the decision unreasonable?
19The Applicant submits that the Tribunal inserted fake, nonexistent, unsigned or anti-scientific medical discussion papers into the appeal record, and that this is outside of the Tribunal’s jurisdiction, contrary to its practice direction, and a violation of his Charter/human rights.
20This Court has previously held that the Tribunal is entitled to include medical discussion papers to provide general background information on medical issues which may be raised in appeals. As noted in the decision of this Court in Kamara v. Workplace Safety & Insurance Appeals Tribunal, , the purpose of medical discussion papers is to provide a broad and general overview of a topic. The Tribunal is not bound by the information in a discussion paper in any particular case. Instead, discussion papers provide a repository of medical knowledge in a variety of areas that both the Tribunal and the parties may look to. The Court goes on to note as well that it is always open to the parties to adduce their own medical evidence to challenge or to distinguish the information in a discussion paper. The Applicant’s substantive criticisms of the medical discussion papers is untethered to evidence supporting those criticisms and in any event it is not clear that the papers provided anything more than general background information. I would not give effect to this ground of review.
Issue #5: Were the Tribunal’s findings of fact unreasonable?
21Mr. Li raises concerns regarding the Tribunal’s findings of fact. In particular the Tribunal found that “the worker’s also asserting that he is incapable of work”, but Mr. Li claims he never said that. He also claims that the tax filings used in the case record were faked and that he performed his own business out of his home doing small mechanical repair.
22The Tribunal noted that in finding that the Applicant made the assertion that he is incapable of work, it relied on extensive submissions from the Applicant made on several dates, including submissions stating that he should be entitled to full loss of earnings without deduction after the final benefit date.
23With respect to Mr. Li’s assertion that the tax related evidence in his appeal record is fake, it is to be noted that at para. 95 of the Tribunal’s decision dated October 31, 2024, the Tribunal notes that it had a very limited understanding of what the worker was actually doing between 2012 and the present time. It goes on to state
There is some income tax information indicating that the worker reported low levels of income from business or employment during the period of time under consideration but there is little direct information that would allow the Panel the ability to understand the accuracy of the income tax information and, if accurate, whether the reasons for the reduced level of income were related to the worker’s knee difficulties.
24It is significant to note that Mr. Li declined to participate in an oral hearing before the Tribunal that would have allowed the Panel to obtain information from him about his circumstances, despite the Tribunal requesting the worker to do so. In its decision, the Tribunal concluded
Having no ability to determine whether the reported loss of income in tax filings was caused by his knee injury, the Panel accepts that the worker’s loss of income due to his injury during this time period in question, is to be based upon reasonable estimates of the worker’s post-injury earning capacity or what the worker was “able to earn” under section 43(2) of the WSIA.
Given this understanding of what the worker’s medical impairment was, the Panel accepts that the worker was capable of full-time employment but may have been restricted in the type of work that he could perform. A torn meniscus on its own is capable of being repaired and would not likely in the Panel’s view require a reduction of working hours so long as the work being performed did not aggravate the left knee injury.
25This was a reasonable finding in the circumstances. The Tribunal recognized the issue the applicant raised and proceeded to consider it on the available information.
26With respect to the calculation of an award for non-economic loss, the Tribunal noted that a report from Dr. Hanna did not provide any evidence of a worsening of the worker’s knee condition beyond what was observed in the March 11, 2012 report. There was, therefore, a lack of medical evidence indicating that the worker’s condition changed in any substantial way between 2012 and 2016. The Tribunal therefore concluded
There is therefore, no potential increase in the worker’s NEL award that would result from a change in the MMR date. Furthermore, should, following the release of this decision, further medical evidence become available of a deterioration occurring prior to 2016, the worker’s ability to seek additional benefit entitlement based upon that evidence would be lessened if the MMR date was set later than April 11, 2012.
The Panel therefore accepts the date of April 11, 2012 as the appropriate MMR date.
When examining the WSIB’s rationale for assessing the worker’s NEL award at 2% as of April 11, 2012, it can be seen that the WSIB determined that the medical evidence as of that time indicated that the worker did not have a loss of range of motion in his left knee but had a meniscal tear involving the posterior horn of the medical meniscus.
27The Panel therefore confirmed the worker’s and NEL award of 2% for his left knee. It noted, however, that should the worker be successful at some future point in obtaining recognition that the subsequent worsening of his knee was the result of a deterioration of his workplace injury, the worker would then be eligible for a further NEL assessment. The Tribunal’s assessment on this issue is owed deference and is reasonable.
28With respect to the labour market re-entry analysis, the Tribunal noted that there was no practical benefit to be obtained by the worker given the worker’s age of more than 65 years old. The worker’s appeal for entitlement to labour market re-entry services was therefore denied. This finding is reasonable.
Issue #6: Do the Tribunal members have a conflict of interest or raise a reasonable apprehension of bias?
29Mr. Li argues that the adjudicators appointed to hear this matter are not qualified to sit on this hearing based on the provisions within the WSIAT and WSIAT Members Code of Conduct pertaining to conflict of interest. He argues there is both a pecuniary and a personal conflict of interest that arises because Tribunal members are opposing parties to Mr. Li in this application for judicial review. It would appear that many of Mr. Li’s allegations with respect to conflict of interest are based on decisions which the Panel made. For example he states
I ask the Honorable Court to declare that my human rights and the Charter rights granted by p. 43 (2) (b) of the WSIA have been infringed by the respondents – Mr. Dee, Mr. Sacco, Ms. Agnidis because they have refused to vary the illegal partial LOE decisions made by the WSIB based on the illegal income so that they have broken/distorted the provision 43 (2) (b) of the WSIA (due to the 0 income in the suitable and available employment or business) bound to p. 1, 9, 10 (1), 46.1, 47 …. of the HRCO and guaranteed by p. 1, 15 and 24 (1) (2) … of the Charter.
30In their decision on the conflict issue, the Tribunal commented as follows at para. 21 of their decision dated May 7, 2025
31The Panel concludes that it does not observe any substantial legal argument based upon the Charter or Ontario Human Rights Code that would require the Panel to respond prior to confirming their disposition of the benefit entitlement decisions that they arrived in their last interim decision.
32In its decision dated January 24, 2024, the Tribunal dealt with the claim of bias. Starting at para. 24 the Tribunal stated
The Panel has little to add to our response to the worker’s concerns about the Panel potentially being biased against him. The Panel members have no personal interest in the results of the worker’s appeal. The Panel members have had no personal dealings with the worker outside of the context of the worker’s appeal for benefits. The worker’s perception of potential bias by the Panel members appears to be solely based upon the Panel’s determination of the issues that were before us for a determination in the interim decision in this matter and the worker’s disagreement with the orders made in the interim decision.
While the manner in which the worker’s participation in the appeal as his own representative has presented some procedural challenges, the requirement to address these procedural challenges in no way affects the Panel’s understanding of the need to conduct a hearing in a procedurally fair manner and to arrive at a determination of the issues on appeal based upon their merits.
The Panel has turned its mind to the question of whether, regardless of our conclusions on the bias/apprehension of bias issue, there would be a practical benefit to recusing ourselves in order to allow another Panel to assume responsibility for the conduct of the worker’s appeal. We have concluded, however, that there would be no practical benefit from doing so given that the worker’s concerns with the present Panel appear to be a result of the substance of the decisions we have made regarding the worker’s appeal, and the worker’s concerns do not appear in any way to be related to the personalities involved, any past interpersonal dealings between the Panel and the worker, or any self-interest of the Panel.
There would, furthermore, be negative consequences from the recusal of the Panel. There would be negative consequences for the Tribunal if it encouraged the belief that parties to an appeal are allowed to influence the composition of the Panel that hears the appeal based upon their like or dislike of the substantive decisions made by the Panel. There would also be additional costs imposed upon the Tribunal by requiring a new Panel to familiarize themselves with the matter.
The Panel concludes that a reasonable apprehension of bias does not exist in the circumstances of the present appeal and that we will therefore not recuse ourselves from the hearing of the worker’s appeal.
33I would adopt the Panel’s reasoning on this point. A party’s disagreement with a ruling is not a basis for a finding the tribunal had a reasonable apprehension of bias. The Applicant has not provided any evidence that the Panel members had a personal conflict of interest or a reasonable apprehension of bias. It would have been an error in principle for members of the Tribunal to step aside “just to be on the safe side”: the presumption of impartiality is high, and Tribunal members should proceed with the cases before them in the absence of a demonstrated basis for allegations of reasonable apprehension of bias. This ground of review must fail.
Conclusion
34I would therefore conclude that the application should be dismissed. The respondents have confirmed that they are not seeking any costs and therefore the dismissal is on a without costs basis.
McKelvey J.
I agree
D.L. Corbett J.
I agree
O’Brien J.
Released: July 2, 2026