CITATION: Kuffuor v. First Bus Canada, 2014 ONSC 2297
COURT FILE NO.: 13-DC-1961
DATE: 2014/05/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
IRENE KUFFUOR
Applicant
– and –
FIRST BUS CANADA and ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL)
Respondents
Kellie Stewart, for the Applicant, Irene Kuffuor
Jennifer L. Guth, for the Respondent, First Bus Canada
Daniel S. Revington, for the Respondent, Workplace Safety and Insurance Appeals Tribunal
HEARD: April 9, 2014
WHITTEN, B. THOMAS and MINNEMA JJ.
BY THE COURT
[1] The appellant has applied for judicial review of the decisions rendered by M.R. Keil, Vice Chair of the Workplace Safety Insurance Appeals Tribunal (“WSIAT” or “Tribunal”) on September 20, 2011 and May 30, 2012. The impact of these decisions is that the appellant’s pursuit of damages for injuries resulting from an accident on May 31, 2006 involving the operation of a bus owned and operated by First Bus Canada (“First Bus”) is confined to that provided by the statute in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (“WSIA”).
Motion to Dismiss for Delay
[2] First Bus has moved to strike the application on the basis that there has been an unreasonable delay in its pursuit. Given that a decision in this regard would render the application for judicial review moot, the court indicated that it would decide the issue at the outset.
[3] The accident between the bus and the appellant’s parked car took place on May 31, 2006. On May 29, 2008, the appellant commenced her action against First Bus in the Superior Court. The action was defended. By June 15, 2009, discoveries had been completed. Based on what had been discovered, First Bus ultimately served a “Right to Sue Application” on February 12, 2010.
[4] The application was argued before the WSIAT on February 20, 2011. The appellant requested a reconsideration of that decision. As indicated, the tribunal member issued the base decision on September 20, 2011. The reconsideration was released on May 30, 2012. It is that date which caused the clock to run as it did with respect to the time alleged to be unreasonable.
[5] In July of 2012, counsel for the appellant commenced a maternity leave. That leave ended in January of 2013, and ultimately after her return counsel advised counsel for First Bus that her client would be seeking judicial review of the above decisions.
[6] Overlapping the latter part of counsel’s maternity leave was the appellant’s departure to Guyana to attend to the needs of her elderly mother. The appellant returned in early spring of 2013 only to face a series of screenings and tests, which ultimately led to a diagnosis in the latter part of 2013 of breast cancer.
[7] On October 2, 2013, the application for judicial review before the court was issued. From that point forward, the application proceeded with reasonable alacrity, with various courtesies being extended between counsel, as to the exchange of documentation. Therefore the time period under scrutiny is between May 30, 2012 and October 2, 2013.
[8] I turn now to the applicable law and analysis with respect to unreasonable delay.
[9] Any assessment of unreasonable delay in a matter is invariably contextual. The appellant has the responsibility of advancing her application expeditiously.
[10] A court starts with: (1) the extent of the delay; (2) the presence or absence of a reasonable explanation for the delay and; (3) the prejudice occasioned by the delay.
[11] The extent of the delay is in itself not determinative, although the greater the duration, the greater the need for a reasonable explanation.
[12] A “reasonable explanation” is one which can be objectively viewed as significant and legitimate. The humanity of the participants in a process cannot be ignored. Life is impacted upon by birth, sickness and other such challenges. Counsel taking maternity leave is a recognized and laudatory phenomena. It has been suggested, that such a counsel could have “handed off” the appellant to another member of her firm. In theory, that is possible, but in reality the solicitor/client relationship may be of such uniqueness that such a transfer would be hard for the client to endure.
[13] As it was, the appellant had her own challenges; her ailing parents who were far away. Her return to a suspicion of cancer and the diagnostic process which would be intimidating and would invariably affect her prioritizing of obligations, such as this application.
[14] So there are legitimate explanations for some of the delay in the challenged timeframe. One also notes that the time involved between the “Right to Sue” application and the reconsidered decision of the tribunal was over two years. Not that this period provides a benchmark, but it does provide something of a temporal backdrop.
[15] An analysis of the existence of “prejudice” requires assessing what each side has on the line.
[16] The appellant faces the prospect of having the compensation for her injuries being determined by operation of the statute instead of by a court. A determination by the latter, has the potential for greater compensation, than that pursuant to the regime of the statute. The tribunal’s decision denies the appellant her “day in court.”
[17] On the other side, the respondent, First Bus, seeks finality to their proceedings based on an accident in 2006. Memories fade over the passage of time; some passages are of such magnitude that “prejudice is presumed.” That being said, the Superior Court action is essentially a damage assessment. Liability is a foregone conclusion. The appellant will have to establish during the time elapsed from the accident that she has injuries that survive the threshold required. It is still open to First Bus to require defence’s medicals. The medical history of the appellant is a matter of record.
[18] If First Bus has to incur extra costs, these can be addressed by an application to the courts. First Bus can apply to have the incurring of pre-judgment interest suspended for a period of time. In other words, the potential prejudice to First Bus can be addressed monetarily.
[19] On balance, the appellant has more at stake than First Bus in this application. Given the above, it cannot be said that the impugned time is of such a magnitude to have caused an unreasonable delay. Accordingly, the application to dismiss for delay is denied.
Judicial Review
[20] As noted, the appellant seeks judicial review of both a decision of the Workplace Safety and Insurance Appeals Tribunal on September 20, 2011, and of a reconsideration of that same decision by the same Tribunal on May 30, 2012.
Additional Facts
[21] The appellant worked for Para Med both as a personal support worker, and in the capacity as a driver for the “Drive-Away” or “Day-Away” program.
[22] On May 31, 2006, she drove two clients of Para Med to an Alzheimer Day Away program. After escorting them in, she returned to her vehicle. While sitting in her vehicle about 15 to 20 minutes later, and while looking at her paperwork regarding her next home care clients, her vehicle was hit by a vehicle owned by First Bus and driven by one of its employees.
[23] As noted, the appellant brought an action in the Superior Court of Justice against First Bus claiming damages, and First Bus brought an application before WSIAT pursuant to s. 31 of the WSIA for a determination of whether the appellant had a right to continue that action.
[24] At the hearing, the appellant gave oral evidence and argued that she was an independent operator. The Tribunal found to the contrary that there was an employee/employer relationship. The Tribunal also found that the appellant was in the course of her employment when the accident occurred, despite her argument that she was between assignments. It therefore found that her right of action was taken away by application of s. 28 of the Act.
[25] The appellant sought reconsideration by the Tribunal of its decision on two grounds. First she argued that the Tribunal did not properly consider whether she was an employee while performing her work as a personal care worker, but an independent operator when she was performing her duties as a driver. The Tribunal rejected this argument for the reason that it was not made on the initial hearing, but it also made a finding that her being a driver and a personal support worker were not two distinct jobs, but rather two different aspects of the appellant’s employment with Para Med. The appellant’s second ground was to re-argue that she was in the course of her employment at the time of the accident. That was also rejected, as the Tribunal determined that there was no significant factual defect or fundamental error in law found in the original decision. The reconsideration request was therefore denied.
Issues for Review
[26] The appellant in her factum lists the three issues/arguments for this review as follows:
The Tribunal failed to consider the distinction between the appellant’s work as an employee personal support worker for Para Med and that of her work as a contract driver for the “Drive-Away” program; no consideration was made that the appellant could have been an independent contractor for the purpose of the Drive-Away program.
In the event it is determined that the appellant was a worker for the purposes of the Drive-Away program, the Tribunal erred in determining that she was in the course of her employment at the time of the accident.
The Tribunal erred in law by finding that the appellant was in the course of her employment at the time of her injury given that the activity at the time of the accident was not connected to her work.
[27] As can be seen, her listed second and third issues are the same.
Standard of Review
[28] There was no dispute that the standard of review for both the decision of the Tribunal and the Tribunal’s reconsideration is reasonableness: Roach v. Ontario (Workplace Safety & Insurance Appeals Tribunal), [2005] O.J. 1295 (C.A.) at para. 17; leave to appeal to the S.C.C. refused [2005] S.C.C.A. No. 264.
[29] In assessing whether a decision is reasonable, the reviewing court is to have regard to two considerations: the existence of justification, transparency and intelligibility within the decision making process, and whether the decision falls within a range of possible outcomes which are defensible in respect of the facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, 2008 1 S.C.R. 190, at para. 47. For this particular Tribunal, the reviewing court can interfere only where the decision is clearly irrational: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, [2008] O.J. No. 4103 (C.A.); leave to appeal to the Supreme Court of Canada refused [2008] S.C.C.A. No. 541 (SCC).
Analysis
[30] Regarding the first issue, as noted it was not raised before the Tribunal on the first hearing. However, the Tribunal addressed it on the appellant’s reconsideration application. A review of that decision shows that the Tribunal gave careful consideration in paragraphs 9 to 14 to the facts that would be the indicia of either a contract of service with Para Med, namely of an employee, or a contract for service, namely of an independent contractor. These criteria were addressed at length in the original hearing, and included factors such as the appellant wearing a Para Med uniform and badge while driving, the request for drives coming only through Para Med, and that if the appellant wished to change her shift, her replacement had to be approved by Para Med. As noted, in weighing this evidence the Tribunal found that the appellant did not work at two discrete jobs, but rather that there were different aspects of the same job with Para Med. The decision was transparent, clear, and easy to understand, and the outcome, being the finding that the appellant was an employee in both roles, is easily defensible in respect of the facts and the law.
[31] Regarding the second and third issues, the Tribunal in the original decision found that the appellant was in the course of her employment at the time of the accident. As noted by the Tribunal itself on the reconsideration, the original reasons explained the Tribunal’s findings of fact and contextualized them within the relevant policies and applicable jurisprudence. Of the range of possible outcomes, there were only two; either she was or she was not in the course of her employment at the time of the accident. The Tribunal put weight on the timing of the accident in relation to the work activities, and on the appellant’s own evidence that she was looking at her client list for the day when the accident occurred. It viewed the latter as a work activity reasonably incidental to employment. Again, the decision was transparent, clear, and easy to apprehend, and the finding that the appellant was in the course of her employment is easily defensible in respect of the facts and the law.
[32] There is nothing before us to suggest that the decisions of the Tribunal were anything but rational. For these reasons we dismiss the application.
Costs
[33] The parties, First Bus and WSIAT have been successful in this appeal. WSIAT has advised that it does not seek costs.
[34] First Bus has provided a Costs Outline for its costs through both Tribunal proceedings and this appeal. Counsel indicates that it captures only a portion of the total costs as a new computer system was installed at the firm during the course of this proceeding. The Costs Outline suggests costs of $31,720.86.
[35] First Bus argues that this appeal is effectively the third attempt by the plaintiff (appellant) to displace the application of the WSIA to this accident and as such it should be entitled to costs.
[36] We accept the submissions of counsel for the appellant that the appellant is impecunious and that her only source of income continues to be $104.00 per week from Income Replacement Benefits. The argument regarding delay outlines her cancer diagnosis and treatment.
[37] The financial circumstances of the losing party can be a consideration in a decision on costs and is captured by Rule 57.01(1)(i) as “any other matter relevant to the question of costs.” In Belvedere v. Brittain Estate, 2009 ONCA 691, the Court of Appeal withheld costs because of the losing party’s financial circumstances.
[38] The appellant has exercised her right under the terms of the WSIA to take the position she has in this proceeding commenced by First Bus before the Tribunal. An order of costs, in any amount, would have devastating effect on the appellant.
[39] We have considered the nature of the proceedings, the positions taken throughout by the parties, the success of this respondent, and the reasonable expectations of the losing party (the Costs Outline of the appellant is $3,098.46.)
[40] If we were to consider costs we believe our award could only properly be a consideration of costs related to this appeal and not the hearings below. Costs are always discretionary. In the circumstances of this proceeding, we decline to order costs.
A. Whitten J.
B. Thomas J.
T. Minnema J.
Released: May 22, 2014
CITATION: Kuffuor v. First Bus Canada, 2014 ONSC 2297
COURT FILE NO.: 13-DC-1961
DATE: 2014/05/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IRENE KUFFUOR
Applicant
– and –
FIRST BUS CANADA and ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL)
Respondents
Whitten J.
B. Thomas J.
T. Minnema J.
Released: May 22, 2014