COURT FILE NO.: 614/04
DATE: 20060217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll j., mccartney r.s.j. and swinton j.
B E T W E E N:
ROGER M. BARD, MARY CATHERINE BARD, KEVIN BARD and JASON BARD
Plaintiffs
(Applicants)
- and -
KENMAR DOORS LTD., and THE WORKPLACE SAFETY AND INSURANCE BOARD (formerly the WORKERS’ COMPENSATION BOARD)
Defendants
(Respondents)
Ian B. McBride, for the Plaintiffs (Applicants)
Derek G. Nicholson, for the Respondent, Kenmar Doors Ltd., and
Peter Chisholm, for the Respondent, Workplace Safety and Insurance Board
HEARD: February 17, 2006
SWINTON J.: (Orally)
[1] The applicant, Roger M. Bard, has brought an application for judicial review, dated November 23, 2004, in which he requests an order setting aside the compromise, dated October 11, 2002, reached by the Workers’ Compensation Board in the 1991 action brought by Mr. Bard and his family members against Kenmar Doors Ltd.
[2] There is a lengthy history in this case. Mr. Bard was injured in a workplace accident on March 16, 1989. He elected to claim benefits from the Workers’ Compensation Board which paid him monthly benefits of $502.13. Mr. Bard brought an action in 1991 based on the defective fabrication of an industrial door by the respondent Kenmar Doors Ltd. The defect in the door is alleged to have caused his injury.
[3] The Board permitted Mr. Bard to proceed with the action as long as he agreed to certain terms involving the repayment of benefits and protection of the Board against liability for costs.
[4] In 1993, the Workers’ Compensation Appeals Tribunal confirmed that Mr. Bard’s right of action was subrogated to the Board and that the Board had authorized Mr. Bard to maintain an action in his own name, consistent with the rights of subrogation of the Board.
[5] On a motion brought by Kenmar, Roy J. granted an order making the Board a party defendant in the action on March 7, 1996. This meant that the Board now faced potential cost consequences of the action. The Board cancelled Mr. Bard’s benefits in response.
[6] In 1998, the Board sought and Bell J. granted an order declaring that no agreement existed between Mr. Bard and the Board and that the Board was dominus litis of the action. As dominus litis, the Board could choose whether to maintain compromise or discontinue the action. Its senior legal counsel formed the view that the action presented difficulties with respect to credibility, liability and quantum of damages.
[7] The Board advised Mr. Bard that it did not wish to maintain the action. Kenmar brought a motion to stay or dismiss the action before Power J., who granted the stay but denied the motion to dismiss the action on May 8, 2001. The Board, in its capacity as dominus litis attempted to reach compromises on several occasions.
[8] Mr. Bard and his family allege that they had not been consulted and that the decisions were reached in bad faith. Power J. set aside the settlement reached in a decision dated April 12, 2002. He advised the Board that it could not proceed to settle the matter without at least hearing and considering the position of Mr. Bard. A stay of proceedings continued until the Board exercised its authority under the Act.
[9] At paragraph 35 of his reasons, Powers J. said:
“Mr. Bard, is not proceeding to seek relief by means of judicial review. However, I am of the opinion that, nevertheless, I possess a jurisdiction or discretion in this ongoing litigation to refuse to affirm the “settlement” where I am satisfied that no settlement should lead to a judgment unless and until it is either consented to by the worker or, as aforesaid, the Board has exercised its statutory mandate following a review and consideration of the workers’ position on the appropriateness of the settlement proposal. For the Board to proceed otherwise is for it to act in an arbitrary fashion. In this case, the Plaintiffs were not provided with an opportunity, after my decision of May, to express their opinion on what an appropriate settlement should involve.”
[10] He went on to say at paragraph 39:
“On the evidence before me, I am satisfied that neither the Board nor its counsel was involved in deliberate misconduct. I am satisfied that the Board and its counsel felt that they where acting in an appropriate fashion and that, the settlement was a reasonable one. However, as I mentioned earlier, the reasonableness of the settlement is irrelevant given the denial to the Plaintiffs of the right they had to put forth their position to the Board and have the Board review it before it made a decision on what was or was not reasonable.”
[11] He concluded that the settlement was not binding on the plaintiffs and then stated at paragraph 49:
“Accordingly, in my opinion, the parties are back where they were following the release of my decision in May of last year. The stay of proceedings will continue until the Board has exercised its authority pursuant to the Act. In exercising its authority it must, at least, fairly consider the Plaintiffs’ position on what an appropriate settlement should entail.”
[12] Kenmar and the Board reached another settlement on October 11, 2002, for $130,000.00, paid in full settlement of the claim. In reaching this compromise, the Board relied on a legal opinion dated June 19, 2002 from Terence J. Collier, an experienced personal injury lawyer who had invited and received submissions from both parties before delivering his report. He concluded at page 4 of his letter, page 57 of Volume 3 of the Application Record:
“Therefore after considerable thought and review of the material, I have concluded that the settlement offer made by the Defendant, which I understand that WSIB is prepared to accept, is indeed reasonable keeping in mind all of the frailties in Mr. Bard’s case and the usual exigencies of litigation.”
[13] Mr. Bard brought a motion before Roccamo, J. to declare the settlement non-binding on the Bards. She dismissed the motion for want of jurisdiction on May 21, 2003. The Court of Appeal upheld this decision on September 1, 2004.
[14] The first issue in this case is the appropriate standard of review. In our view, the appropriate standard for review of the Board’s decision is patent unreasonableness given the privative clause in s.69(1) of the Workers’ Compensation Act. The expertise of the Board in dealing with all aspects of the Workers’ Compensation system and the factual nature of the problem before it.
[15] It is conceded that the Board had the authority and the right to reach a compromise of the law suit. It is alleged that the Board did so for the sole reason of protecting itself from a possible exposure for costs.
[16] From the record, it is clear that the Board was satisfied that the compromise was reasonable given the recommendations of the Judge presiding at the final settlement conference and the report of independent counsel, Mr. Collier, as well as its own assessment of the merits of the action.
[17] The Board was reasonably concerned about possible exposure to costs if the litigation continued, but that was not the only consideration in reaching its decision.
[18] In our view, it cannot be said that the decision was patently unreasonable. The decision came about only after the Board carried out the directions of Power J. and after it considered the Bard’s position. There was consistency in the valuation of the claim by the settlement conference judge, Mr. Collier and the Board.
[19] While the Board is not at idem with the Bards, that does not make its decision unreasonable. Therefore, the application for judicial review is dismissed.
O’DRISCOLL J.
[20] With the concurrence of my colleagues, I have endorsed the back of the Application Record, Volume 1 as follows: “This application is dismissed for the oral/recorded reasons given for the Court by Swinton J. Costs: We have reserved this issue until we have the written submissions of counsel for Kenmar Doors Ltd. and counsel for the Bards. We will then deal with the costs issue in one endorsement.”
O’DRISCOLL J.
MCCARTNEY R.S. J.
SWINTON J.
Date of Reasons for Judgment: February 17, 2006
Date of Release: March 21, 2006
COURT FILE NO.: 614/04
DATE: 20060217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL J., MCCARTNEY R.S.J.
AND SWINTON J.
B E T W E E N:
ROGER M. BARD, MARY CATHERINE BARD, KEVIN BARD and JASON BARD
Plaintiffs
(Applicants)
- and -
KENMAR DOORS LTD., and THE WORKPLACE SAFETY AND INSURANCE BOARD (formerly the WORKERS’ COMPENSATION BOARD)
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 17, 2006
Date of Release: March 21, 2006