DATE: 20050407
DOCKET: C42448
COURT OF APPEAL FOR ONTARIO
MACPHERSON and CRONK JJ.A. and WHALEN J. (ad hoc)
IN THE MATTER OF the Judicial Review Procedure Act,
R.S.O. 1990, c. J.1, as amended
AND IN THE MATTER OF a decision of the Workplace Safety and Insurance Appeals Tribunal, WSIAT #97-1132, Decision #770/98IR, dated February 5, 2002
B E T W E E N :
JANE ROACH
Chris G. Paliare and
John K. Phillips
for the respondent
Applicant (Respondent)
- and -
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
David Stratas and
Brad Elberg
for the appellant
Respondent (Appellant)
Heard: March 15, 2005
On appeal from the judgment of the Superior Court of Justice (Divisional Court) (Justices Jean L. MacFarland, Edward F. Then and Katherine E. Swinton) dated April 19, 2004, reported at [2004] O.J. No. 1734.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) appeals from the decision of the Divisional Court (per MacFarland, Then and Swinton JJ.) dated April 19, 2004. The court held that a reconsideration decision by the Tribunal in relation to a workplace injury suffered by Jane Roach was patently unreasonable. The court quashed the Tribunal’s decision and remitted the matter to the Tribunal to be considered again.
[2] The sole issue on the appeal is whether the Divisional Court erred in its application of the patently unreasonable standard of review to the Tribunal’s decision.
B. FACTS
[3] The respondent, Jane Roach (“Roach”), was a worker at a group home for people with developmental disabilities. On January 3, 1991, she was assaulted by a resident and suffered injuries. Roach missed about two months of work after the attack, but then returned to work for approximately one year. She stopped working again in April 1992 because of symptoms she believed to be related to the incident and has not returned to work since.
[4] Roach claimed benefits under the Workers’ Compensation Act, R.S.O. 1990, c. W.11, which was later replaced by the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (the “WSIA”). The Workplace Safety and Insurance Board (the “Board”) considered the claim. The Board determined that Roach had chronic pain disability as a result of the workplace incident. It held that she was partially disabled and was capable of participating in a vocational rehabilitation program. The Board awarded Roach disability benefits and benefits for future economic loss but denied supplementary benefits.
[5] Roach was not satisfied with the benefits that she received from the Board. She believed that the workplace incident caused her a disability in the form of traumatic vertebrobasilar ischemia (“TVBI”), a condition in which a traumatic injury may impede blood flow to parts of the body supplied by certain arteries. In her view, this condition left her with little or no capacity for vocational rehabilitation. Roach appealed to the Tribunal.
[6] On October 27, 1999, after considering evidence comprising over 800 pages of documents, the viva voce evidence of Roach, her husband and Dr. Spence (Roach’s TVBI expert), and more than 80 pages of submissions from Roach’s counsel after the appeal hearing, the Tribunal, in a 76‑paragraph decision, concluded that the workplace incident did not cause Roach to develop TVBI.
[7] In reaching its decision, the Tribunal had to resolve conflicting expert evidence. Dr. Frank and Dr. Spence offered their opinions that the workplace incident caused Roach to suffer TVBI. Dr. Norris and Dr. Horsey offered opinions to the contrary.
[8] Under the WSIA, the Tribunal is authorized to consult an independent medical specialist, selected from a roster of expert health professionals or assessors. After the evidence was presented, the Tribunal decided to obtain an independent report from an assessor. Dr. Silver reviewed the case materials and in his independent report concluded that “the normal MR angiograms and the absence of any ischemic damage on the MR images absolutely excludes VBI as the explanation of the patient’s symptoms”.
[9] The Tribunal preferred the opinions of Drs. Norris, Horsey and Silver and found that the workplace incident did not cause Roach to suffer TVBI. In its reasons, the Tribunal highlighted a number of factual considerations, particularly the fact that there was no credible evidence that Roach experienced a second blow, a blow to the back of her head, that could cause TVBI.
[10] Under the WSIA, a party has no right of appeal from a decision of the Tribunal. However, a party may apply to the Tribunal for a reconsideration of the original decision on a number of grounds, including the discovery of significant new evidence which was not available at the original hearing: see the Tribunal’s Practice Direction: Reconsiderations.
[11] Roach applied for a reconsideration and submitted new evidence – an affidavit and a letter from her mother, two affidavits from Pauline Stewart (“Stewart”), a co-worker who had witnessed the workplace incident, and an opthamological report prepared by Dr. Warnica in March 1991. The key piece of new evidence was Stewart’s statement that Roach suffered blows to both the front and back of her head when she was assaulted.
[12] On February 5, 2002, the Tribunal released its reconsideration decision. The Tribunal upheld is original decision in reasons totalling 95 paragraphs, including 39 paragraphs dealing with the TVBI issue. The Tribunal considered Stewart’s evidence about the workplace incident and concluded:
Hence, we are not persuaded that the content of the co‑worker’s affidavit is sufficiently weighty to contradict the substantial evidence on file regarding the initial reporting of the incident. We are not persuaded, therefore, that we erred in our finding that the worker did not likely sustain a second injury to the back of her head so as to provide a likely source for a TVBI injury.
[13] Roach made an application for judicial review to the Divisional Court. A hearing was held on April 19, 2004. The court delivered an oral judgment the same day, quashing the Tribunal’s reconsideration decision and remitting the matter to the Tribunal for a new hearing “in accordance with these reasons”.
[14] The Divisional Court applied the standard of review of patent unreasonableness. It held that the Tribunal’s reconsideration decision was patently unreasonable in three respects:
In our view, the Tribunal focused on the issue of whether there was one blow or two to the applicant’s head, rather than the issue in this case which is, whether the injury of January 3, 1991 caused her to suffer TVBI. Where, as here, the Tribunal’s conclusion that the applicant suffered one blow was so critical to the decision there was an obligation to consider and clearly explain the basis for their rejection of the co‑worker’s unchallenged sworn evidence. See Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), [2000] O.J. No. 2987 at para. 148.
Even assuming the first issue resolved in favour of the applicant, there remained to be determined the conflict in the medical opinions, particularly those of Dr. Silver and Horsey on the one hand and Dr. Spence on the other. That conflict remains to be resolved.
[15] The Tribunal sought leave to appeal the Divisional Court’s decision. This court (per Moldaver, Sharpe and Gillese JJ.A.) granted leave to appeal on September 28, 2004.
C. ISSUE
[16] The sole issue on the appeal is whether the Divisional Court erred by concluding that the Tribunal’s reconsideration decision was patently unreasonable.
D. ANALYSIS
[17] The parties agreed, and the Divisional Court held, that the standard of review for the Tribunal’s reconsideration decision was patent unreasonableness. We agree.
[18] The patent unreasonableness standard of review is “clearly a very strict test”: see Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 at 964 (“PSAC”). A tribunal’s decision should be set aside as patently unreasonable only if it is “clearly irrational, that is to say evidently not in accordance with reason” or “so flawed … that no amount of curial deference can properly justify letting it stand”: see, respectively, PSAC at pp. 963-64 and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 165.
[19] With respect, I am of the view that the Divisional Court erred in its conclusion that the Tribunal’s reconsideration decision was so flawed that it met this exacting standard and deserved to be quashed.
[20] As stated above, the Divisional Court determined that the Tribunal’s reconsideration decision was flawed in three respects.
[21] First, the court stated that the Tribunal failed to focus on the correct issue, namely, whether the injury from the workplace incident caused Roach to suffer TVBI.
[22] With respect, I disagree. In its initial decision, the Tribunal specifically framed one of the issues as “whether the worker has a disability in the form of traumatic vertebrobasilar ischemia as a result of an injury that occurred at work on January 3, 1991”. The Tribunal then analyzed this issue in its initial decision and again, in the context of the new evidence, in its reconsideration decision.
[23] Second, the court held that the Tribunal had not sufficiently explained why it rejected Stewart’s “unchallenged sworn evidence” that Roach had suffered a blow to the back of her head during the workplace incident.
[24] With respect, I disagree. The Tribunal addressed this issue in paragraphs 27‑40 of its reconsideration decision. It set out, accurately, the contents of Stewart’s evidence, but then reviewed some of the evidence it had considered in its initial decision, including Roach’s initial description of her injuries to Dr. Bailey, her family physician, (no mention of a blow to the back of the head) and the employer’s incident report completed shortly after the incident and based in part on Roach’s own recollection (nothing about a blow to the head). Based on its review of all the evidence relating to this issue, the Tribunal concluded, at para. 40, that it was not persuaded that “the content of the co‑worker’s affidavit is sufficiently weighty to contradict the substantial evidence on file regarding the initial reporting of the incident”. In my view, this conclusion was open to the Tribunal on the basis of the record before it.
[25] In its reasons, the Divisional Court relied on Payne v. Ontario Human Rights Commission (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.), for the proposition that a tribunal must accept the sworn, unchallenged and uncontradicted affidavit evidence of an affiant on a particular subject matter. In my view, Payne is not applicable to the present case. There was a significant amount of material in the record before the Tribunal that contradicted Stewart’s evidence. The Tribunal carefully considered all the evidence and reached, and explained, its decision. In short, the Tribunal did precisely what it was supposed to do.
[26] The Divisional Court’s third reason for concluding that the Tribunal’s reconsideration decision was patently unreasonable was that the conflict in the medical opinions “remains to be resolved”.
[27] With respect, this conclusion is in error. In its initial decision, the Tribunal dealt extensively with all the medical evidence and explicitly resolved the conflicting opinions of the various physicians:
Hence, we are of the opinion that the preferred diagnosis in this case is the one suggested by Dr. Horsey, Dr. Norris and Dr. Silver: a non‑organic disability that was triggered by the incident of January 3, 1991.
[28] For these reasons, I conclude that the Divisional Court erred in determining that the Tribunal’s reconsideration decision was patently unreasonable.
E. DISPOSITION
[29] I would allow the appeal, set aside the decision of the Divisional Court and reinstate the final decision of the Tribunal.
[30] The Tribunal does not seek its costs of the appeal; accordingly, there should be no order as to costs.
RELEASED: April 7, 2005 (“JCM”)
“J. C. MacPherson J.A.”
“I agree E. A. Cronk J.A.”
“I agree L. W. Whalen J. (ad hoc) per JCM J.A.