COURT FILE NO.: 180/06

DATE: 20080124

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT- TORONTO

LANE, KITELEY AND SWINTON JJ.

BETWEEN: )

Gursharn Singh ) Ravinder Sawhney, solicitor for Applicant ) the Applicant

AND )

Workplace Safety and Insurance Appeals ) Brad Elberg and Trevor Guy, Tribunal ) solicitors for the Respondent Respondent )

) HEARD: October 25, 2007

KITELEY J.

REASONS FOR DECISION

[1] Mr. Singh injured his lower back and right elbow at work. As a result of a series of decisions by the Workplace Safety and Insurance Board (the “Board”) and the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), he has received benefits. He asserts that he is entitled to temporary total disability benefits from February 5, 1996 to September 8, 1998. The Board denied the claim and that denial was upheld by the Tribunal. This is an application for judicial review of three decisions made by the Tribunal that affect that part of his claim.

Background:

[2] In December, 1994, Mr. Singh (who was then 32 years old) was hired by a food distributor to move bags and boxes of fruits and vegetables in its distribution centre. On January 2, 1995, Mr. Singh strained his lower back and right elbow while lifting a bag of onions. This is referred to as the “January 1995 incident”. Mr. Singh’s family doctor saw him that day and concluded he had tendonitis in his right elbow and a back sprain. She referred Mr. Singh to an orthopaedic surgeon. She reported that Mr. Singh would likely completely recover with medication and physiotherapy.

[3] Mr. Singh maintained his regular duties until March 18, 1995 when he quit his job and he applied to the Board for benefits.

[4] On February 5, 1996, Mr. Singh was offered a modified work position by his employer that was apparently within his physical capacities, paid as much as his previous position, and was permanent. The evidence is that he refused to accept or even try the position.

Decisions that are the subject of this Application:

[5] The Board accepted entitlement for both the lower back and right elbow on a disablement basis and granted temporary total disability benefits from January 2, 1995 to February 5, 1996, at which time the Board deemed that Mr. Singh was fit for suitable modified work at no wage loss that was available with the accident employer. When Mr. Singh did not return to work, temporary benefits were discontinued.

[6] The Board accepted that Mr. Singh suffered a permanent impairment not only to his right elbow, but also to his lower back. For his back condition, the Board accepted a diagnosis of “chronic myofascial back strain”. In August 1996 the Board granted Mr. Singh entitlement to a 13% Non-Economic Loss (NEL) award, recognising the residual impairment in both compensable areas. In November 1996, the NEL award was increased to 22%. It was later determined by the Board that it had miscalculated the NEL, and it was increased to 32% at that time. The NEL award was increased again to 45% in July 2003. However, effective May 1, 1996, the Board granted a zero percent Future Economic Loss (FEL) award on the basis that Mr. Singh had declined suitable modified work that was available to him with the employer.

[7] In a decision dated August 24, 2000 by J. Pereira, a Board Appeals Resolution Officer (the “ARO”), Mr. Singh was denied entitlement for psychotraumatic and chronic pain disabilities, lost time benefits beyond February 5, 1996 and physiotherapy treatment for the periods of February 4, 1998 to February 24, 1998 and December 6, 1999 to January 18, 2000. The ARO upheld the ruling of the Board that the medical evidence was insufficient to establish that Mr. Singh’s depression was caused by the January 1995 incident; the medical evidence was insufficient to establish that the January incident caused permanent impairment for which the Board had not already compensated Mr. Singh; and Mr. Singh was not entitled to benefits beyond February 5, 1996, being the date that the employer had offered a suitable modified job that Mr. Singh had neither tried nor accepted.

[8] On December 18, 2001, Mr. Singh had back surgery. Following discharge, he participated in conservative post-operative therapies. The Board accepted entitlement to benefits because of the surgical procedure and reinstated temporary total disability benefits from December 18, 2001 to April 1, 2003, at which time, the Board granted Mr. Singh 100% FEL benefits.

[9] In a decision dated February 28, 2002, a Vice-Chair of the Tribunal referred the issues under appeal before ARO Perreira back to the Board in light of the decision to compensate for surgery. In a decision dated August 20, 2002, the Appeals Resolution Officer granted Mr. Singh entitlement to physiotherapy treatment for the periods of February 4, 1998 to February 24, 1998 and from December 6, 1999 to January 18, 2000.

[10] Mr. Singh appealed the decision with respect to psychotraumatic disability and temporary total disability benefits from February 5, 1996 to December 18, 2001.

[11] In Decision 172/02 dated September 23, 2003, the Tribunal (composed of Vice-Chair S. Ryan) allowed the appeal in part. Mr. Singh was awarded entitlement to benefits for a psychotraumatic disability related to the compensable accident. The Tribunal found that the Board had erred in determining that Mr. Singh was not entitled to benefits for depression. Referring to the section on “psychotraumatic disability” in the Operational Policy Manual, the Tribunal concluded that Mr. Singh met the criteria and should be assessed for the purpose of an NEL award for that disability.

[12] The Tribunal then considered whether Mr. Singh was entitled to temporary total disability benefits for the period of February 5, 1996 to December 18, 2001. The Tribunal noted that the evidence in the Case Record established that Mr. Singh had remained totally disabled since July 8, 1999. As of that date, Mr. Singh’s major depression eclipsed what the Tribunal described as “the controversial organic basis of his disability”, and Mr. Singh became incapable of any type of remunerative employment, including the light duties made available to him by the employer in 1996. The Tribunal concluded that Mr. Singh should be paid temporary total disability benefits from July 8, 1999 to December 17, 2001. However, the Tribunal also concluded that Mr. Singh was not entitled to lost time benefits from February 5, 1996 to July 7, 1999.

[13] Following the release of that decision, the Board granted Mr. Singh a 25% NEL award for his psychotraumatic disability. When combined with his NEL award for low back and right elbow impairments, Mr. Singh received a 70% total NEL award.

[14] Mr. Singh requested clarification of Decision 172/02. That request was considered on June 19, 2004 and the Tribunal issued Decision 172/02R dated June 30, 2004. The Vice-Chair agreed that on a further assessment of the evidence, the combined effects of Mr. Singh’s organic and non-organic conditions rendered him competitively unemployable as of September 9, 1998. He was therefore entitled to temporary total disability benefits from September 9, 1998 to July 8, 1999.

[15] Mr. Singh made a second reconsideration request dated May 31, 2005. Ian J. Strachan (Tribunal Chair) responded in a letter dated August 12, 2005 and indicated that the materials submitted in support of the second reconsideration request did not provide new information about Mr. Singh’s condition prior to September 9, 1998. Seeing no difference in substance between the two reconsideration requests, he declined to assign the second reconsideration request for review.

[16] Mr. Singh has challenged three Tribunal decisions. The first is Decision 172/02 that dealt with medical causation and the ability to perform modified work, namely the issue whether the January 1995 incident caused Mr. Singh’s depression and whether he was entitled to receive disability benefits from February 5, 1996 to December 18, 2001. The second decision (172/02R) was a reconsideration of 172/02 conducted at the request of Mr. Singh in accordance with the Tribunal’s statutorily-authorized Practice Direction on Reconsiderations. The third decision (dated August 12, 2005) by the Chair was a second reconsideration decision conducted at the request of Mr. Singh.

Relief Requested in this Application:

[17] The applicant requests that his appeal from the denial of temporary total disability benefits for the period from February 5, 1996 to September 8, 1998 be remitted to another Vice-Chair with direction to apply the policies of the Board.

Issues in this Application:

[18] The applicant asserted that the three decisions are in breach of the Charter of Rights and Freedoms and are contrary to the decision of the Supreme Court of Canada in Bell Canada v. Canadian Telephone Employees Assn.[^1] His counsel argued that the Tribunal failed to consider Board policies and in so doing, breached its duty to act fairly. Furthermore, the Tribunal made findings that were contrary to the record, particularly on the issue of Mr. Singh’s ability to do suitable work.

Standard of Review:

[19] The Board and the Tribunal were established pursuant to the Act[^2]. Section 118 of the Act gives the Board the authority to decide all matters under the Act, including whether an injury has been caused by an accident, whether a worker is able to return to work, and whether loss of earnings resulted from an injury. The central issues are often medical causation and the worker’s (in)ability to perform work.

[20] The Tribunal is a specialized administrative tribunal, separate from and independent of the Board. The primary function of the Tribunal is to exercise its exclusive jurisdiction to hear appeals from the Board’s final decisions concerning entitlement to benefits. The Tribunal reviews decisions and findings of fact, including findings on issues of medical causation, and it decides questions of law. The Tribunal is the final appellate forum in matters of workplace safety and insurance. Section 123(4) of the Act provides that a decision of the Tribunal is final and not open to question or review in a court.

[21] The Tribunal follows an inquisitorial model of adjudication. Tribunal members can play a role that is more active than a judge in an adversarial proceeding and they apply their own expertise to decide the question.

[22] The Statutory Powers Procedure Act[^3] does not apply to the Tribunal’s proceedings and decisions. The Tribunal determines its own practice and procedure. According to s. 124(1), it makes decisions “upon the merits and justice of a case” and is “not bound by legal precedent”.

[23] Applying the factors in Pushpanathan[^4], the applicant took the position that the standard of review is correctness. He conceded the importance of the privative clause, but he argued that the purpose of the legislation is to compensate injured workers and to assist them with vocational rehabilitation, and what is really at stake in this judicial review is the mandate of the Tribunal to follow relevant policies. He submitted that the failure to apply the policies is a question of law. He also asserted that the court’s expertise is greater than that of the Tribunal vis-à-vis the mandated application of one of the Board’s policies.

[24] We agree with the respondent that the standard of review is patent unreasonableness. The privative clause, the inquisitorial model of adjudication, the authority of the Tribunal to determine its own practice and procedure and the decisions under review being essentially fact-based rulings based on medical evidence all demonstrate that the standard of patent unreasonableness that has been established in so many other cases[^5] ought to apply.

Analysis:

[25] The applicant took the position that the Tribunal failed to apply Board policies. However, his factum did not refer to specific policies. During submissions, counsel asserted that the following policies had not been applied:

Vocational Rehabilitation (VR) Principles

Setting Vocational Rehabilitation (VR) Goals

Identifying a Vocational Rehabilitation (VR) Objective

VR Plans

Co-operating with Vocational Rehabilitation (VR)

Re-Activating Vocational Rehabilitation (VR) Cases.

[26] Counsel also referred to these subsections of s. 126 of the Act:

(1) If there is an applicable Board policy with respect to the subject matter of an appeal, the Appeals Tribunal shall apply it when making its decision.

(4) If the tribunal, in a particular case, concludes that a Board policy of which it is notified is inconsistent with, or not authorized by, the Act or does not apply to the case, the tribunal shall not make a decision until it refers the policy to the Board for its review and the Board issues a direction under subsection (8).

[27] Pursuant to s. 126, the Board has established many policies such as those referred to by the applicant. In reviewing the decisions of the Board and of the Tribunal, it is clear that some of those policies were specifically referred to[^6] while others were inferentially considered. Counsel for the respondent conceded that the policy that required the establishment of a Vocational Rehabilitation Plan had not been followed, in that no written plan appeared in the record. However, all of the elements of the VR Plan policy had been adhered to, in that there had been a meeting with Mr. Singh, consideration was given to a position of modified work, Mr. Singh’s family doctor had been consulted, and a trial of modified work had been arranged.

[28] We agree with the applicant that the Tribunal is obliged to consider the policies[^7]. However, simply because the decisions do not specifically refer to relevant policies does not mean that the Tribunal failed to consider and apply Board policies. We do not agree with the applicant’s submission that the three decisions of the Tribunal were patently unreasonable on account of the failure to consider Board policies.

[29] The applicant argued the Tribunal had a duty to act fairly based on the five factors in Baker[^8]:

Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. The list is not exhaustive.

[30] The applicant asserted that given the significance of the adjudication of workers’ compensation benefits, the nature of the decision makes it particularly important to the injured claimant. He submitted that “the terms of the statute” in the second factor were not followed, since guidelines and policies under the law were ignored, resulting in injustice. He observed that the factor of the “legitimate expectations” of Mr. Singh was noteworthy because there would be an expectation that a Tribunal would follow proper procedure. He said that the fifth factor had also been violated, in that the Tribunal ignored the mandated procedures by not following the policies relating to vocational rehabilitation and payment of benefits.

[31] We agree that the Tribunal had a duty to act fairly in arriving at each of the three decisions. The five factors in Baker are intended to establish the content of the duty of fairness:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.[^9]

[32] Mr. Singh had an oral hearing before Decision 172/02 was rendered. His solicitor made detailed written submissions and provided extensive materials on each of the three occasions that gave rise to the decisions. Mr. Singh knew the issues that he had to address. The procedure was open and fair. The bases upon which the decisions were made were reasoned and comprehensive. We are not persuaded that the Tribunal failed to follow Board policies in any of the three decisions. We do not agree that the duty to act fairly was violated.

[33] The applicant argued that the Tribunal made findings contrary to the record on the issue of the availability of suitable work. A review of the decisions of the Tribunal (172/02 and 172/02R) indicate that all of the material on that point was considered and weighed. Just because the Tribunal did not agree with Mr. Singh’s position does not mean that the findings were contrary to the record. Mr. Singh disputed the allegation that he had failed to try the modified job. The Board made a finding of fact that was adopted by the Tribunal in those two decisions. That finding of fact was within the expertise and authority of the Tribunal. That finding was supported by the record before it. That finding of fact is not patently unreasonable. These two decisions were well-reasoned and comprehensive.

[34] Although there is no right of appeal from a decision of the Tribunal, the Act gives the Tribunal authority to reconsider its decisions at any time. The Tribunal may confirm, amend or revoke its original decision if it considers it advisable to do so. The Practice Direction on Reconsiderations makes it clear that the test on reconsideration is high: the Tribunal must be persuaded that there is a significant defect in the administrative process or content of the decision that, if corrected, would probably change the result of the original decision. The defect, and its effects, must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened. The Tribunal may decide not to assign a reconsideration request for review if the request repeats the substance of a previous unsuccessful reconsideration request. The applicant did not challenge the Practice Direction.

[35] The decision of the Tribunal dated August 12, 2005 was consistent with the test articulated in the Practice Direction. It is not patently unreasonable. It too is rational and well-reasoned.

[36] The applicant suggested that the Tribunal had reversed the burden of proof. He referred to the Board’s policy on “Benefit of Doubt”. That policy derives from one of the statutory principles of decision contained in s.124(2) of the Act, which provides that if it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the claimant. As the respondent pointed out, the Tribunal made a finding that the preponderance of the evidence showed that Mr. Singh was not totally disabled before September 9, 1998 and that he was totally disabled after September 9, 1998. The “Benefit of Doubt” policy is irrelevant. The Tribunal did not reverse the burden of proof.

Notice of Constitutional Question:

[37] The applicant had served a Notice of Constitutional Question in which he asserted that the Tribunal had ignored the policies of the Board, that those policies constitute “law” under the Canadian constitution and under the Charter and that by so doing, Mr. Singh had been deprived of constitutional standards and his right to the equal operation of those polices without discrimination. Therefore, the Tribunal violated s. 15 of the Charter, the right to equality.

[38] In order to pursue such a claim, Mr. Singh would have to have established an evidentiary record showing that the Tribunal decisions imposed differential treatment between Mr. Singh and other workers; that the alleged differential treatment was based on one or more enumerated or analogous grounds; and that the law in question has a discriminatory purpose or effect. Since this issue was not advanced at the Tribunal, there is no evidentiary record to sustain the claim.

[39] The Charter violation was asserted for the first time in this judicial review. As the Court of Appeal [^10] has held:

In the normal course, appeals are not the proper forum in which to raise brand new issues which significantly expand or alter the landscape of the litigation. On occasion, such issues can be raised on appeal where the party seeking to raise the new issue demonstrates that the interests of justice require an exception to the normal and accepted course of litigation.

[40] That principle applies equally to applications for judicial review. No explanation was provided as to why it was not raised at the Tribunal. The applicant has not satisfied the onus of demonstrating that the interests of justice require this Court to entertain the submission on a judicial review application. We agree with the respondent that the discrimination claim must therefore be dismissed.

ORDER TO GO AS FOLLOWS:

[41] The application for judicial review of the decisions of the Tribunal dated September 23, 2003, June 30, 2004 and August 12, 2005 is dismissed.

[42] If by January 31, 2008, counsel are unable to agree as to costs, then counsel shall make brief written submissions not exceeding 3 pages (plus an outline of costs) on this schedule: the respondent by February 7; the applicant by February 14; reply, if any, by February 21.

Kiteley J.

Lane J.

Swinton J.

DATE: January 24, 2008

[^1]: 2003 SCC 36, [2003] 1 S.C.R. 884

[^2]: S.O. 1997, c. 16. The Act came into force on January 1, 1998, replacing the Workers’ Compensation Act.

[^3]: R.S.O. 1990, c. S.22

[^4]: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982

[^5]: For example, in Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2005] O.J. No. 1295 (C.A.)

[^6]: In Decision 172/02, there is reference to the Operational Policy Manual entitled “psychotraumatic disability”.

[^7]: FN 1 Bell Canada

[^8]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-28

[^9]: FN 8 Baker para. 22

[^10]: Perez v. Governing Council of the Salvation Army in Canada (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 at 233 (C.A.)