COURT FILE NO.: CV-14-0794-00 DATE: 2017-02-22 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL TAYLOR Self-represented Plaintiff/Responding Party
- and -
WORKPLACE SAFETY & INSURANCE BOARD – WSIB, and WORKPLACE SAFETY & INSURANCE APPEALS TRIBUNAL - WSIAT Defendant/Moving Party
BEFORE: Price J.
COUNSEL: Jean-Denis Belec, for the Defendant/Moving Party, WSIB Andrew Lokan, for the Defendant/Moving Party, WSIAT
HEARD: August 15, 2016, at Brampton, Ontario
Reasons for Order
OVERVIEW
[1] The plaintiff Paul Taylor applied for workplace insurance benefits following a workplace injury he suffered in 1997. His application was determined in a series of decisions between 1997 and 2006 by the Provincial Administrative Board that administered employer-funded benefits to injured workers. Mr. Taylor appealed the Board’s decisions to the Appeal Tribunal, which reviewed the Board’s decisions on appeal in 2008 and, on reconsideration, in 2013.
[2] Mr. Taylor, who is self-represented, now sues the Board and the Appeal Tribunal for approximately $17 million, alleging that, by numerous breaches of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, they acted in bad faith in requiring him to undergo training for positions that were unsuitable for him by reason of his colour-blindness and work-related injuries, and by intentionally trying to harm him.
[3] The Appeal Tribunal brings this motion to dismiss Mr. Taylor’s action as frivolous, vexatious, and an abuse of process or, in the alternative, to strike his pleadings on the ground that they disclose no reasonable cause of action. The Tribunal additionally asserts that Mr. Taylor’s remedy, if any, was by way of application to the Divisional Court for judicial review, that this Court lacks jurisdiction to determine them, and that his claims, in any event, are statute-barred.
BACKGROUND FACTS
[4] On February 6, 1997, Paul Taylor was injured in a work-related accident. He later applied to the Workers Compensation Board (WCB) for benefits pursuant to the Workman’s Compensation Act. The WCB was a Provincial Administrative Board which administered employer-funded benefits to injured workers.
[5] The WCB was replaced on January 1, 1998, by the Workplace Safety and Insurance Board (WSIB), an independent trust agency created under the Workman’s Safety and Insurance Act (WSIA) to administer workplace accident benefits under the WSIA. Paul Taylor became a WSIA benefits claimant.
[6] The Workplace Safety & Insurance Appeals Tribunal (WSIAT or Tribunal) is an administrative tribunal created under the WSIA. The WSIAT hears and decides appeals from final decisions of the WSIB.
The Tribunal’s Appeal and Reconsideration Decisions
[7] In 2007, after a series of decisions by the WSIB, Mr. Taylor appealed five of the Board’s decisions to the WSIAT. A panel of the WSIAT heard Mr. Taylor’s appeal during four days of hearings on January 10, and on July 3, 4, and 5, 2007.
[8] On February 11, 2008, the WSIAT rendered its decision in the appeal, allowing Mr. Taylor’s appeal in part (the “Appeal Decision”). The Appeal Decision affirmed the following aspects of the WSIB’s determinations:
a) the WSIB’s decision to deny certain short-term and long-term benefits relating to Mr. Taylor’s alleged back and neck injuries for lack of medical support; b) the WSIB’s labour market re-entry plan for Mr. Taylor, including its assessment of suitable alternative employment; and c) the WSIB’s calculation of future economic loss benefits.
[9] Mr. Taylor applied to the WSIAT for reconsideration of its decision in his appeal, arguing that the WSIAT had treated him unfairly at the appeal hearing. On June 13, 2013, the Tribunal denied Mr. Taylor’s application for reconsideration (the “Reconsideration Decision”). It found that there was no evidence of unfair treatment at the appeal hearing, and that the appeals panel had come to a reasonable conclusion.
Mr. Taylor’s Application for Judicial Review
[10] On June 20, 2013, Mr. Taylor sent a letter to the Tribunal in which he stated: “Please also consider this my intent to file for judicial review of the [appeal] decision and reconsideration decision.”
[11] On June 24, 2013, the Tribunal sent a reply to Mr. Taylor advising him that his letter did not constitute an application for judicial review, and advised him to consult a lawyer regarding the requirements and implications of commencing a judicial review application.
[12] On July 4, 2013, Mr. Taylor commenced an application to the Superior Court of Justice for judicial review. His application sought to set aside the WSIAT’s Appeal and Reconsideration Decisions, and sought an order from the Court granting him determinations about his medical restrictions and a wide range of WSIA benefits.
[13] On July 11, 2013, the Tribunal wrote to Mr. Taylor, advising him that, given the relief sought by his application, he likely intended to bring an application for judicial review before the Divisional Court. Mr. Taylor abandoned his Superior Court application on August 1, 2013.
The current proceeding
[14] On February 20, 2014, Mr. Taylor commenced the present action, in which he sought $6,460,455 plus interest, consisting of loss of interest on benefits not paid prior to 2013, earnings benefits from 2003 to June 2016, loss of future increases in earnings from 2003 to June 2016, the cost of retraining programs, including tuition, books, and travel, amounting to $73,831, loss of non-economic loss awards, and damages in the amount of $5,000,000.
[15] On July 23, 2014, Mr. Taylor caused an Amended Claim to be issued. In his Amended Claim, he increased the amount he claims to $16,710,455, seeking, in addition to earlier amounts claimed, compensatory damages in the amount of $1,710,455, and punitive damages in the amount of $15,000,000. The Amended Claim states that it seeks increased damages for “decisions by defence counsel that caused intentional delays which were of a clear strategic nature and were not in good faith.”
[16] Mr. Taylor, in his Amended Claim, follows his prayer for relief with 77 paragraphs in which he sets out a wide range of complaints about the handling of his claims by the WSIB and the WSIAT. These include the following allegations about the WSIB:
a) It acknowledged the full extent of his injuries in February 1997 and later, without consulting his family doctor on medical reporting, downgraded his injuries based on discrepancies in such reporting, with the intention of reducing the cost of the injuries to the WSIB.
b) It failed to provide treatment prescribed by Mr. Taylor’s family doctor, or to pay for any treatment after March 1997.
c) It did not recognize that he had suffered a permanent impairment until approximately 3 years after his initial injuries, in spite of the fact that Mr. Taylor’s family doctor characterized his injuries in this manner after 7 months, choosing, instead, to follow a less reliable medical report.
d) It only recognized permanent impairment to Mr. Taylor’s lower back, whereas he had, in fact, suffered a permanent impairment to his entire back, neck and head.
e) It always sided with Mr. Taylor’s employer, falsely stating that Mr. Taylor was not cooperating, which was later found to be incorrect, and reducing his income benefits by half.
f) Knowing that Mr. Taylor’s employer had provided Mr. Taylor with work in March/April 1997 that was unsuitable and which aggravated his condition, including forcing him to operate a heavy vehicle while under the influence of strong opioid pain medication, it took no action to prevent harm to Mr. Taylor or the public.
g) It took no action when it found that Mr. Taylor’s employer had deceived them by intentionally withholding important evidence that Mr. Taylor and the WSIB had requested.
h) It failed to recognize a prior colour-blindness and possible learning disabilities or test for such disabilities, and failed to accommodate his disabilities in the WSIB appeal. Instead, it misled Mr. Taylor into believing that his colour-blindness was not recognized by law as a disability, in breach of the Ontario Human Rights Code and the equality provision in section 15 of the Canadian Charter of Rights and Freedoms.
i) It sponsored career retraining programs that were unsuitable, in that they were designed for employment of a person with the qualifications of a Professional Engineer, which Mr. Taylor did not possess, and without colour-blindness.
j) It sponsored a retraining program which required Mr. Taylor to endure a 1.5 hour bus ride, which subjected him to physical hardship, owing to his back injuries, and to emotional distress.
k) It intentionally made false claims that Mr. Taylor’s disabilities were not real and that he suffered from self-perceived limitations, which maligned Mr. Taylor’s character.
[17] The Amended Claim makes the following allegations about the WSIAT:
a) It refused to allow most of Mr. Taylor’s crucial witnesses to testify, including WSIB doctors and Mr. Taylor’s own doctor, who would have been able to explain the inconsistencies in the medical reporting concerning his injuries and condition, thereby violating due process.
b) It refused to receive, or ignored, Mr. Taylor’s up-to-date medical evidence, stating that it was too recent, when the WSIB had failed to request such evidence earlier.
c) It disregarded WSIB policy stating that only the functional abilities form was to be used for determining a claimant’s capabilities for job retraining.
d) It refused to accept his colour-blindness as a disability under the Ontario Human Rights Code. Instead, it set its own criteria for determining the suitability of job retraining for a person with a disability
e) It refused to allow Mr. Taylor to testify about his prior non-work-related and work-related disabilities which rendered proposed retraining program unsuitable. Further, after a 5-month recess, WSIAT refused to permit him to testify about the retraining program selection process and the problems he had encountered during his employment.
f) It intentionally misled Mr. Taylor into believing that he was required to provide medical evidence of his prior non-work related disability that might render a proposed employment or re-training unsuitable.
g) It made intentionally made findings of fact before reviewing the facts [evidence] in his case, in order to save costs.
h) It refused to permit Mr. Taylor to further question his witnesses to correct apparent falsehoods in their testimony, and misquoted the testimony of Mr. Taylor and his witnesses.
i) It intentionally misquoted Mr. Taylor to say that he did not want legal representation when, in fact, he had tried to secure such representation and had been advised that he must proceed with his appeal before such representation could be provided.
j) A panel member, during the panel’s deliberations, said that Mr. Taylor was “a joke” and that he should be kicked in the ass for not getting a job and providing for his children.
k) It declined to deal with issues that Mr. Taylor had raised in his 15-page reconsideration request, including issues of entitlement, permanent impairment, and chronic pain disability, among others.
l) It failed to consider his complaint that he should not have been required to provide proof of his colour-blindness. Further, when he provided such evidence, WSIAT disallowed the evidence, refusing to deal with his complaint as a human rights complaint rather than as an appeal.
m) It failed to give Mr. Taylor the benefit of the doubt and instead, intentionally ruled against him where there was a doubt.
n) It took ten years to deal with his appeal, deferring in some instances to WSIB counsel, when they stated they were unavailable on dates that the WIAT offered them. Mr. Taylor submits the WSIB counsel’s unavailability was strategic and intentional.
[18] Mr. Taylor concludes:
This is where insurance companies and workers compensation systems intentionally delay paying benefits to individuals to starve them out. This is in hopes claimants will go away and have no resources to fight them. In the end result, the insurance companies save a considerable amount of money. This is why the Canadian courts have slowly started to respond by starting to award larger amounts of punitive damages.
Either the courts start to award even larger damages to plaintiffs in insurance company and workers compensation cases or order them to pay the claimants benefits while they wait the long periods of time. This prevents the typical starve-out technic [sic] that is all too often employed in the insurance industry and workers compensation systems throughout North America. It is also a major concern, especially in cases of suitability concerns to force a worker to do unsuitable work for months or years because the WSIB is unwilling to do their part. As in this particular case, it poses a serious safety concern where the truck driver is knowingly being forced to operate a heavy vehicle while under the influence of drugs….
[19] The essence of Mr. Taylor’s action is that the Tribunal decisions are wrong and should be reversed.
[20] Mr. Taylor additionally alleges errors of fact and law in the Tribunal’s Appeal and Reconsideration Decisions, including:
a) failing to acknowledge colour blindness as a disability under the Ontario Human Rights Code;
b) questioning the amount of pain Mr. Taylor was in because he did not have continual pain medication prescribed;
c) failing to find that the WSIB had an onus to consult with Mr. Taylor’s doctor in the course of developing its labour market re-entry plan;
d) failing to incorporate Mr. Taylor’s limitations into the WSIB’s retraining program; and
e) failing to deal with medical restrictions as a separate matter.
[21] Moreover, Mr. Taylor alleges a variety of purported torts against the Tribunal and its panel members – all of which are denied – including:
a) intentionally misleading Mr. Taylor into believing that he had to provide medical evidence of his prior non-work related disability; b) intentionally misquoting Mr. Taylor in its decision; and c) threatening to harm Mr. Taylor (based on the member’s statement that he would like to kick Mr. Taylor in the ass for not getting a job and supporting his family).
ISSUES
[22] This motion requires the court to determine the following issues:
a) Does this court have jurisdiction over the subject-matter of the action? b) Does the WSIAT have the capacity to be sued? c) Is the action frivolous and vexatious or an abuse of process? d) Does the Claim disclose a reasonable cause of action?
POSITIONS OF THE PARTIES
[23] The WSIAT argues that:
a) this Court lacks jurisdiction over the subject-matter of the action, in that Mr. Taylor seeks judicial review of the decisions of the Board or the Tribunal, which remedy is within the exclusive jurisdiction of the Divisional Court; b) WSIAT lacks legal capacity to be sued; and c) the action is frivolous, vexatious and an abuse of process, based on the following: (i) it is, in essence, an attempt to re-litigate issues that were, or could and should, have been raised before the Board or the Tribunal, and is therefore an abuse of process; (ii) Mr. Taylor claims relief that is beyond the jurisdiction of this Court to order, including loss of earnings benefits, future economic loss benefits, non-economic loss benefits, retraining expenses, costs of medical care, and interest on benefits that were not paid – all of which are within the exclusive jurisdiction of the WSIB and the Tribunal. (iii) In short, it amounts to an indirect and collateral attack on the Tribunal’s Appeal and Reconsideration Decisions. d) It is statute-barred, because the action was commenced more than two years after the alleged misfeasance. e) It is based on a surreptitious tape-recording of deliberations of the Board, which evidence is inadmissible;
[24] Alternatively, the WSIAT submits that the Statement of Claim should be struck out because it fails to disclose a reasonable cause of action.
[25] Mr. Taylor submits that:
a) He is suing for bad faith, not seeking judicial review of a decision made in good faith; b) He is not seeking to re-litigate his entitlement to benefits, or his obligation to undergo re-training, but suing for damages for the tort of misfeasance of office, which could not reasonably have been raised before the Board or Tribunal that was determining his entitlement to benefits and that he was suing for misfeasance; c) His surreptitious tape recording of confidential deliberations and private communications falls within an exception to the rule rendering such evidence inadmissible because of the wrongful nature of the deliberations and communications; d) His cause of action is not statute barred because it did not crystalize until he had exhausted the remedies available to him within the decision-making process of the Board and the Tribunal, and he commenced his action within two years of the final decision of the Tribunal.
ANALYSIS AND LAW
a) Does this court have jurisdiction over the subject matter of the action?
Legislative Framework
[26] Rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the court to dismiss an action where it does not have jurisdiction over the subject matter of the action.
[27] The Tribunal has exclusive jurisdiction to hear and decide appeals relating to WSIA claims. Its decisions are not open to review by the courts on its merits. The Tribunal’s exclusive jurisdiction is set out at s. 123 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.:
Jurisdiction
- (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 health care, 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, an employer’s classification under the insurance plan and the amount of the premiums and penalties payable by a Schedule 1 employer and the amounts and penalties payable by a Schedule 2 employer; and (c) such other matters as are assigned to the Appeals Tribunal under this Act.
Decisions on an appeal
(3) On an appeal, the Appeals Tribunal may confirm, vary or reverse the decision of the Board.
Finality of decision
(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.
Same
(5) No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court. [Emphasis added]
Applying the legislation to the facts of this case
[28] Mr. Taylor’s action challenges the Tribunal’s Appeal and Reconsideration Decision by alleging procedural and substantive errors. The proper process for asserting such errors is by an application for judicial review before the Divisional Court, as confirmed in Aird v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 3600 at para. 15. This Court does not have jurisdiction to engage in a judicial review of the Tribunal’s decisions in the context of an action, pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1).
[29] This Court has no jurisdiction to order some categories of relief which Mr. Taylor seeks in his action, including loss of earnings, future economic loss, and non-economic loss benefits, retraining expenses, costs of medical care, and interest on benefits that were not paid – all of which are within the exclusive jurisdiction of the Tribunal and the WSIB under s. 123(1)(a) and (4) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A..
b) Does the tribunal have the legal capacity to be sued?
Legislative framework
[30] Rule 21.01(3)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the court to dismiss an action where the defendant does not have the legal capacity to be sued.
[31] The Tribunal, which exercises quasi-judicial functions, lacks the legal status and capacity to be sued for its actions in carrying out those functions.
[32] The Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. provides that Tribunal members and employees are immune from liability for action in carrying out the Tribunal’s statutory functions, including hearing appeals and rendering decisions:
Immunity
(1) No action or other proceeding for damages may be commenced against any of the following persons for an act or omission done or omitted by the person in good faith in the execution or intended execution of any power or duty under this Act:
Members of the board of directors, officers and employees of the Board.
The chair, vice-chairs, members and employees of the Appeals Tribunal …
Jurisprudence
[33] This Court confirmed the Tribunal’s status as an entity with no legal capacity to be sued in Aird v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 3600 (“Aird”):
The WSIAT is an administrative tribunal separate and apart from the WSIB. It is the final appellate forum in matters of workplace safety and insurance in Ontario. It is a specialized tribunal which makes findings of fact and decides legal questions and applies the law. As a result, I am satisfied that the WSIAT exercises quasi-judicial functions and lacks the legal status and capacity to be sued for actions taken in carrying out those functions. Aird, supra, at para. 24.
c) Is the action frivolous, vexatious and an abuse of process?
Legislative framework
[34] Rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the court to dismiss an action where it is frivolous, vexatious and an abuse of process. See also r. 25.11, whereby the Court may strike out all or part of a pleading, without leave to amend, on the grounds that the pleading is frivolous, vexatious or an abuse of process.
[35] Abuse of process includes circumstances where the litigation before the court is found to be in essence an attempt to re-litigate a claim has already been determined in another forum. This principle was established in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“CUPE”) at para. 37; and Aird v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 3600, at para. 17.
[36] In Aird v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 3600, the Court faced similar facts to those of the present case. Mr. Aird made a claim under the WSIA alleging that a heart condition was work-related. His claim was denied by the WSIB and the Tribunal, on appeal and on reconsideration. Mr. Aird commenced an action, claiming that the Tribunal’s decisions were flawed and wrong, advancing a number of purported tort claims against the Tribunal and its members. Aird, supra, at paras. 9, 30. This Court held that Mr. Aird’s action was frivolous, vexatious and an abuse of process:
16 In any event, the issues raised by Mr. Aird in the Statement of Claim regarding his medical condition, medical records, WSIB’s refusal to accept his claim, breach by Mr. Aird’s employer to report are indirect or collateral attacks on the fundamental issue – was Mr. Aird entitled to benefits for an employment related medical condition in accordance with the WSIB’s Policies and Guidelines. Given the essence of the claim is beyond this court’s jurisdiction and has already been litigated, the claim is frivolous and vexatious.
18 Any further litigation of this issue would be an abuse of process. [Emphasis added] Aird, supra, at paras. 16, 18.
[37] In Pagourov v. Science Applications International Corp., 2007 ONSC 7398, [2007] O.J. No. 891 (S.C.J.) (2007), Mr. Pagourov, the benefits claimant, alleged that the WSIB had engaged in bad faith adjudication of his claim. The Court dismissed the action, finding that it would be an abuse of process to allow the plaintiff to proceed:
14 Canadian courts have applied the doctrine of abuse of process to prevent a party from re-litigating a claim already decided in another forum: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.) at paras. 35-55; Detchev v. Canadian Feed Screws MFG Ltd., [2006] O.J. No. 2565 (Ont. S.C.J.)
15 The plaintiff already has a decision from the Board on the fundamental issue in his case, being whether the workplace caused his illness. As the plaintiff is aware, the WSIA sets out appeal procedures that he can follow if he disagrees with the Board's decision. To allow the plaintiff to circumvent the statutory appeals mechanism set out in the WSIA is tantamount to permitting him to relitigate the very issue already decided by the Board. This violates what Justice Arbour called the principles of judicial economy, consistency, finality and the integrity of the administration of justice: Toronto (City) v. C.U.P.E., Local 79, supra, para 37.
16 I conclude it would be an abuse of process to permit the plaintiff to proceed with his action. Pagourov v. Science Applications International Corp., supra, at paras. 14-16.
[38] The issues raised by Mr. Taylor in his Statement of Claim regarding his entitlement to WSIA benefits arising from his 1997 workplace injury have been decided by the WSIB’s final decisions, the Tribunal’s Appeal Decision, and the Tribunal’s Reconsideration Decision. Further litigation of Mr. Taylor’s entitlement to WSIA benefits for his 1997 workplace injury would constitute a collateral attack on the WSIB and Tribunal’s decisions, and would constitute an abuse of process.
[39] Mr. Taylor’s allegations dealing with “delays” of this motion are an abuse of process. Mr. Taylor should have raised any concerns he had with the pace of this Rule 21 motion in a motion for procedural remedies. They are not the proper basis for claims in his amended Statement of Claim.
d) Does Mr. Taylor’s Claim disclose a reasonable cause of action?
[40] This Court is entitled to strike out the Statement of Claim on the basis that it does not disclose a reasonable cause of action.
Legislative framework
The Test to be applied in a motion made pursuant to Rule 21.01(b)
[41] The law relating to motions to strike out a pleading under rule 21.01(1)(b) is well-settled. A pleading should only be struck under rule 21.01(1)(b) where it is plain and obvious that the pleading discloses no reasonable cause of action. Put differently, a pleading should be struck where the claim has no reasonable prospect of success. As held in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 [Imperial Tobacco] at para. 17.
[42] No evidence is admissible on a motion to strike out a pleading on the ground that it discloses no reasonable cause of action. The motion proceeds on the basis that the facts pleaded in the statement of claim are true, as per Rule 21.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[43] A plaintiff must clearly plead the facts upon which he relies in making his claim:
A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. Imperial Tobacco, supra, at para. 22.
[44] Striking out claims that have no reasonable prospect of success is essential to effective and fair litigation. In a proceeding that contains a valid claim, it unclutters the proceedings by weeding out hopeless claims. This promotes efficiency and correct decision making, and reduces time and cost to litigants and the courts. Imperial Tobacco, supra, at paras. 21-22.
Applying the legal principles to the present action
[45] Mr. Taylor’s Statement of Claim must be struck out in its entirety, as it discloses no reasonable cause of action.
[46] Many of the allegations made in the Statement of Claim, particularly in relation to faults Mr. Taylor finds with the rulings made by the Tribunal, do not amount to torts recognized in law. For instance, there is no recognized tort for “misquoting” a litigant in a decision. Mr. Taylor’s grievances relate primarily to perceived procedural and substantive errors in the Tribunal’s decisions – which are properly the subject of an application for judicial review.
(i) Mr. Taylor’s allegation of assault
[47] Mr. Taylor, at paras. 44 and 58 of his Amended Claim, alleges an assault by an unidentified Tribunal panel member:
[…] In a more damaging situation the WSIAT panel member threatens to harm the plaintiff by making the statement he like to kick the plaintiff’s ass. […]
During the WSIAT hearing a WSIAT panel member had said to another person that he threatened the plaintiff with physical harm by stating in a meeting that the panel member wanted to “kick his [the plaintiff] ass”. […] The panel member’s decision to make such a statement of threat of bodily harm to the plaintiff lacked any good faith what so ever.
[48] Mr. Taylor, who is self-represented, filed an affidavit in response to the motion. Mr. Taylor referred to the alleged threats by a WSIAT panel member, but did not fully describe or disclose when or in what circumstances they were made. The Plaintiff filed with his affidavit a sound recording.
[49] On cross-examination, Mr. Taylor confirmed the following:
(a) That he surreptitiously taped a private in-caucus session of the Tribunal, without the Panel’s knowledge or consent; (b) That the alleged threats were captured on his surreptitious recording, which he appended to his affidavit as Exhibit U5; (c) That this occurred on or about July 5, 2007; (d) That he does not rely upon any other incident in his claims of assault against the Tribunal; (e) That he knew about the statements at the time he says they were made, and raised them shortly after with the Tribunal; and (f) That he waited to commence his action until 2014, some seven years after the events in question.
[50] WSIAT submits that Exhibit U5, which was surreptitiously recorded by Mr. Taylor, violates the WSIAT panel’s deliberative secrecy privilege. As such, its prejudicial effect outweighs its probative value and Mr. Taylor should not be permitted to rely on it in this motion or in this action.
[51] The WSIAT seeks leave to rely on the Affidavit of Mary Ferrari (“Ferrari Affidavit”) sworn September 24, 2015. WSIAT seeks leave under Rule 39.02(2) to rely on the Ferrari Affidavit.
[52] Member Ferrari’s affidavit is proper reply evidence. It arises out of the description Mr. Taylor gave in his cross-examination concerning the circumstances leading to Exhibit U5. Prior to Mr. Taylor’s cross-examination, it was not evident where or how he had obtained his evidence, or what he relied on in support of his allegation of assault. Member Ferrari’s affidavit properly responds to Mr. Taylor’s assertion that he cannot recall whether the statements he objects to were made during the hearing panel’s in-caucus session. This is consistent with First Capital Realty Inc. v. Centrecorp Management Services Limited, 2009 ONSC 75631.
[53] The WSIAT has satisfied the test under rule 39.02 for leave to respond to a matter raised on cross-examination:
a) The evidence is relevant; b) The evidence responds to a matter raised on cross-examination; c) Granting leave to file the affidavit does not result any non-compensable prejudice; and d) There is a reasonable explanation for why the evidence was not included at the outset. This is supported by First Capital Realty Inc. v. Centrecorp Management Services Limited, supra, at para. 9; see also: Arfanis v. University of Ottawa, 2004 ONSC 22944.
[54] The court additionally exercises its residual discretion under Rule 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to permit the evidence where it is in the interests of justice to do so. Rule 1.04 states: “These rules shall be liberally construed to secured the just, most expeditious and least expensive determination of every civil proceedings on its merits.”
[55] Member Ferrari’s affidavit discloses the following:
a) The statements that are the basis of Mr. Taylor’s allegation of assault were made during the Tribunal panel’s deliberations, after hearing Mr. Taylor’s submissions. b) Pursuant to WSIAT policy, the “on record” part of hearings at WSIAT are usually audio recorded. It is WSIAT policy that parties are not permitted to record Tribunal hearings. Applicants and others who attend the hearing are not permitted to record or be present during in-caucus sessions. c) Mr. Taylor’s appeal before WSIAT proceeded on January 10 and July 3, 4 and 5, 2007. The appeal was before a three-member panel of which Member Ferrari served as the Member Representative of Workers. As was the practice, Mr. Taylor’s hearing was recorded by WSIAT. d) Unbeknownst to the panel members, Mr. Taylor also recorded the proceedings. Among other exhibits, Mr. Taylor has appended Exhibit U5 to his affidavit sworn May 6, 2015, which he says is a digital audio recording of the hearing on July 5, 2007. e) Member Ferrari reviewed WSIAT’s official recording for Mr. Taylor’s hearing on July 5, 2007, which was the last day of Mr. Taylor’s appeal. Based on her review and comparison of WSIAT’s official recording and Exhibit U5, it is Member Ferrari’s evidence that Exhibit U5 contains a recording of the panel’s private, in-caucus discussion.
[56] During cross-examination, Mr. Taylor acknowledged he did not have permission from the panel to make his unofficial recording, and the panel was not aware that Mr. Taylor was recording the proceedings. Mr. Taylor further acknowledged that he recorded the panel’s in-caucus discussion, albeit he contends the recording of the in-caucus discussion was inadvertent.
[57] It is clear from Member Ferrari’s evidence and the WSIAT recording of the public portion of the hearing that Mr. Taylor was excused from the hearing room to allow the panel members to caucus in private. Mr. Taylor agreed during cross-examination that Exhibit U5 was recorded while the panel members understood they were “off-the-record”. Although Mr. Taylor did not concede during cross-examination that his recording of the in-caucus discussion was unauthorized, his evidence on this point is contradicted directly by Member Ferrari, who states that Mr. Taylor was not authorized to record the panel’s private, in-caucus discussion.
[58] Justice Cromwell, as he then was, in the Nova Scotia Court of Appeal’s decision in Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, noted that deliberative secrecy is essential in order for administrative tribunals to perform their adjudicative functions:
The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. This protection is necessary to help preserve the independence of decision-makers, to promote consistency and finality of decisions and to prevent decision-makers from having to spend more time testifying about their decisions than making them. Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), supra, at paras. 14 and 35; see also: Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 [Summitt] at para. 76.
[59] Deliberative secrecy applies broadly to both matters of substance (that is, how decision-makers think about the case) and to the process by which adjudicators make their decisions. Tremblay v. Quebec (Commission des affaires sociales), 1992 SCC 1135, [1992] 1 S.C.R. 952 at pp. 964-65 [Tremblay].
[60] Given the importance of deliberative secrecy to adjudicative decision-making, the party arguing to lift deliberative secrecy bears the onus to demonstrate the process did not comply with the rules of natural justice or procedural fairness, and the party must establish “valid reasons” for believing that lifting deliberative secrecy will show that the tribunal made a reviewable error. Tremblay, supra, at pp. 964; Summitt Energy Management Inc. v. Ontario Energy Board, supra, at para. 82.
[61] Mr. Taylor has failed to articulate any compelling reasons to justify admitting his surreptitious recording of the panel’s private, in-caucus discussion. On the contrary, while Mr. Taylor casts the comments on Exhibit U5 as evidence that “the panel members had already made up their mind, prior to hearing the evidence” and that he felt “extremely threatened” by the comments, it is noteworthy that Mr. Taylor took no steps to address the comments for several years.
[62] Deliberative secrecy privilege has long been recognized as an important privilege that warrants protection by the courts. Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), supra, at para 14. Summitt Energy Management Inc. v. Ontario Energy Board, supra, at paras. 83-84. As the Supreme Court warned in Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, the absence of deliberative secrecy could have a chilling effect on the process for administrative decision-making. Ellis-Don Ltd. v. Ontario (Labour Relations Board), supra, at para. 53.
[63] The exclusion of Exhibit U5 from the record is consistent with the principled approach taken by the courts to the admissibility of evidence. The Supreme Court of Canada noted in Cloutier v. The Queen, 1979 SCC 25, [1979] 2 S.C.R. 709 that even where evidence is relevant, material, and admissible, the court has discretion to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effects. That is the case in either a criminal or civil matter.
[64] Given that Mr. Taylor’s recording of the in-caucus discussion was a violation of deliberative secrecy and, possibly, illegally obtained in contravention of section 184.5(1) of the Criminal Code, R.S.C. 1985, c C-46, its probative value, if any, is outweighed by the prejudicial effect of admitting such evidence.
[65] WSIAT requests that Exhibit U5, appended to Mr. Taylor’s affidavit sworn May 6, 2015, be excluded from the evidence on the motion, struck from the record, and removed from the court file. In the alternative, WSIAT further requests an order that Exhibit U5 be sealed. It argues that although court proceedings are subject to the open courts principle, protective orders are regularly granted to ensure that privileged documents and information are not disclosed. Hollinger Inc. (Re), 2011 ONCA 579, at paras. 18-20 (settlement privilege); Fotwe v. Citadel General Assurance Company, 2005 ONSC 5469, at paras. 3-4 (solicitor-client privilege). In such cases, courts recognize that protecting privilege is a value of “superordinate importance” that justifies overriding the presumption in favour of openness. I do not find that this is a case in which protecting privilege is of such importance as to override the presumption in favour of openness.
[66] Even if I had concluded that the tape-recording was admissible, it would not affect the outcome. I am required to treat the allegations in the Amended Claim as true. Doing so, I find, for the reasons that follow, that the allegations of assault do not disclose a reasonable cause of action.
[67] The Statement of Claim does not plead the necessary material facts to assert a claim in assault. Rule 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires full particulars to be pleaded for intentional or malicious conduct.
[68] Assault is the “intentional creation of the apprehension of imminent harmful or offensive contact.” Wuttunee v. Merck Frosst Canada Ltd., 2007 SKQB 29, at para. 46 [Wuttunee]. The necessary elements of assault include:
a) intention: the defendant must have intended to create the apprehension of imminent harmful or offensive contact; b) apprehension of harmful or offensive conduct: the plaintiff must reasonably apprehend harmful or offensive contact; and c) apprehension of imminent contact: the apprehended contact must be imminent. Wuttunee v. Merck Frosst Canada Ltd., supra, at paras. 46-48.
[69] The Statement of Claim fails to plead basic facts. It fails to identify the purported tortfeasor and fails to provide any particulars as to how and in what context the purported “threat” was communicated to Mr. Taylor.
[70] Further, the Statement of Claim fails to plead any of the necessary facts indicating: (a) that the purported tortfeasor intended to create an apprehension of imminent harmful or offensive conduct, (b) that there was a reasonable apprehension of harm or offensive contact, or (c) that the threatened event was imminent.
(ii) Mr. Taylor’s allegations of misfeasance of public office
[71] Mr. Taylor raises for the first time in his factum a new cause of action that WSIAT has committed the tort of misfeasance of public office.
[72] Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the process and legal requirements for a party to assert a new cause of action by way of an amendment to the party’s pleading. It is not proper, in either substance or form, for Mr. Taylor to raise a new cause of action in his factum on the motion. Indeed, Mr. Taylor is aware of the requirements of Rule 26 having already amended his claim once.
[73] Additionally, Mr. Taylor fails to allege in his factum (or his Statement of Claim) the necessary elements to support a cause of action for the tort of misfeasance of public office.
[74] The essential elements were set out by Justice Iacobucci in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. Odhavji Estate v. Woodhouse, supra, at para. 23.
[75] Mr. Taylor’s “claim” for misfeasance of public office is not tenable at law, and such a claim is, in any event, barred by operation of the limitation period for reasons set out below.
e) Is the Claim Statute-Barred?
[76] I find that the claims that Mr. Taylor makes concerning the Tribunal’s appeal hearing in 2007 and its decision in 2008, including his allegations of assault, are statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B..
[77] Mr. Taylor argues that the limitation period for his Claim did not begin to run until after he had exhausted his remedies in the WSIB/WSIAT process, including his appeal and request for reconsideration. He argues that it would be unreasonable to expect him to have commenced his action against the very Tribunal which was charged with making a decision in relation to his application for benefits.
[78] Had Mr. Taylor pursued the WSIAT reconsideration or judicial review process in a timely fashion, this argument would have traction. However, Mr. Taylor did not seek reconsideration of the panel’s decision until 2012, four years after the WSIAT decision was released. Mr. Taylor has not provided a reasonable explanation for this delay, and should not be permitted to rely on this unreasonable delay to extend the limitation period. Mr. Taylor had knowledge of the WSIAT panel members’ alleged improper comments and possessed the surreptitious tape-recording that forms the basis for this lawsuit for many years. Mr. Taylor is presumed to be capable of commencing a proceeding in respect of a claim at all times under s. 7(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. and failed to do so in a timely manner.
f) Should leave to amend be granted?
[79] Leave to amend pleadings should not be granted where a corrected pleading would nevertheless disclose no reasonable cause of action.
CONCLUSION AND ORDER
[80] For the reasons stated above, it is ordered that:
- Leave to amend the statement of claim is denied.
- The statement of claim is struck.
- Mr. Taylor shall pay the defendants’ costs of the motion. If the parties are unable agree on the amount of costs, they shall make written argument, not to exceed four pages, and a Costs Outline, by March 10, 2017.
Price J. Released: February 22, 2017