2019 ONSC 4898

DIVISIONAL COURT FILE NO.: DC-18-2363

DATE: 20190118

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aitken, MacLeod and Ryan Bell JJ.

BETWEEN:

HYDRO OTTAWA

Applicant

– and –

ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Respondent

-and-

DOUG FEATHERSTONE

Stephen Bird, for the Applicant

Michelle A. Alton and Kayla L. Seyler, for the Respondent Ontario (Workplace Safety and Insurance Appeals Tribunal)

Jeffrey H. Meleras, for the Respondent Doug Featherstone

Respondent

HEARD: January 18, 2019

REASONS FOR JUDGMENT

Aitken J.:

Nature of Proceedings

[1] The Applicant, Hydro Ottawa, on an application for judicial review, seeks an order quashing the decision of the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), dated October 26, 2017 (the “Decision”), and remitting the matter to the Tribunal to be determined in accordance with the reasons of the court.

Background Facts

[2] The background facts in this case are as follows. On April 18, 1996, the Respondent, Doug Featherstone, a 27-year old Nepean Hydro (now Hydro Ottawa) worker, fell from a hydro bucket sustaining multiple injuries, including a fracture of the upper jaw and injuries to his lower teeth, neck, back and lower limbs. Subsequent to this accident, Mr. Featherstone developed post-traumatic stress. Mr. Featherstone applied for workers’ compensation benefits under the Workers’ Compensation Act, R.S.O. 1990, c. W. 11. In May 2002, Mr. Featherstone received an award for non-economic loss. A final review in regard to economic loss under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (or the “Act”), occurred on May 1, 2003, at which time Mr. Featherstone was granted a 100% Future Economic Loss benefit to age 65 based on the finding that he was unemployable. Mr. Featherstone was advised at that time that his benefit was locked-in.

[3] Through a process running from 2010 to 2013, it was determined that Mr. Featherstone’s condition had improved to the point that he was deemed able to return to full-time work in the same position at Hydro Ottawa. He did so as of April 18, 2013. This meant that, since that date, Mr. Featherstone has had no continuing economic loss as a result of the April 18, 1996 accident. Despite that, his Future Economic Loss benefits, confirmed to be locked-in in May 2003, have continued.

Decision of the Workplace Safety and Insurance Appeal Tribunal

[4] Once Mr. Featherstone returned to work, Hydro Ottawa sought to have Mr. Featherstone’s Future Economic Loss benefits discontinued by the Workplace Safety and Insurance Board (the “Board”). Its request was refused on December 3, 2014. Hydro Ottawa appealed to the Tribunal. In its Decision of October 26, 2017, denying the appeal (Decision 2027/17), the Tribunal held as follows:

a) The Pre-1997 Workers’ Compensation Act governs Mr. Featherstone’s entitlement to benefits in this case.

b) The legislative provisions governing the award of loss of income benefits under the Workplace Safety and Insurance Act, 1997 are not applicable to Mr. Featherstone’s Future Loss of Income benefit award or calculation, except in so far as they are specifically made applicable by the Workplace Safety and Insurance Act, 1997 and, in particular, by s. 107(2) of the Act.

c) Pursuant to s. 107(2) of the Workplace Safety and Insurance Act, 1997, s. 43(13) of the Workers’ Compensation Act dealing with the Board’s ability to review its determination of the amount of compensation payable to a worker for future loss of earnings was repealed and replaced by ss. 44(1) to (2.9),[^1] of the Workplace Safety and Insurance Act, 1997; however, any reference to “more than 72 months after the date of the worker’s injury” in the Act shall be read as “more than 60 months after the date the compensation for future loss of earnings is determined by the Board …” and any reference to “72-month period” in the Act shall be read as “60-month period”.

d) As a result of these legislative provisions, the Board could not review the Future Economic Loss payments to Mr. Featherstone after May 1, 2003, unless one of the exceptions set out in s. 44(2.1) of the Workplace Safety and Insurance Act, 1997 applied to Mr. Featherstone.

e) None of the exceptions listed in s. 44(2.1) of the Act applied to Mr. Featherstone.

f) As a result, Mr. Featherstone’s Future Economic Loss entitlement was locked-in effective May 1, 2003 and could not be altered by the Board regardless of his returning to work in 2013 and his no longer suffering any on-going economic loss.

g) Section 126 of the Workplace Safety and Insurance Act, 1997 requires the Tribunal to apply applicable Board policies when making their decisions.

h) The applicable Board polices relevant to this matter are policies 202 (Material Change – Worker), 267 (FEL Objection), 278 (Final FEL Review), and 300 (Decision Making/Benefit of Doubt/Merits and Justice). They confirm that the Board could not review Mr. Featherstone’s entitlement to Future Economic Loss benefits when asked to do so by Hydro Ottawa because more than 60 months had expired since the benefits had been granted. As of May 1, 2003, when a final review of Future Economic Loss benefits was conducted, Mr. Featherstone’s benefits were locked-in.

Grounds for Judicial Review

[5] The grounds advanced by Hydro Ottawa to quash the order of the Tribunal are that:

a) The Tribunal erred in law by ruling that it had no jurisdiction under s. 44 of the Workplace Safety and Insurance Act, 1997 to review the level of future economic loss entitlement of a worker who no longer suffers a loss of earnings after the 60-month review window, absent certain exceptions as provided under s. 44(2.1) of the Act.

b) The Tribunal further erred in law in holding that, under the Workplace Safety and Insurance Act, 1997, a worker who no longer suffers a loss of earnings after the 60-month review window can nonetheless continue to receive benefits payable to age 65.

c) Even if the standard of review is “reasonableness” and not “correctness”, the Tribunal’s Decision is unreasonable because it leads to an absurd result and one that could not have been intended by the Legislature.

Standing of the Tribunal

[6] As a preliminary matter, s. 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1 provides that the person who exercises or refuses to exercise a statutory power may be made a party to an application for judicial review. In Children’s Lawyer for Ontario v. Goodis (2005), 2005 11786 (ON CA), 75 O.R. (3d) 309 (C.A.), at para. 26, the Court stated:

The ordinary meaning of this provision gives the administrative tribunal the right to be a party to the proceeding if it chooses to do so. It leaves to the tribunal rather than the court the decision of whether to become a party to the application for judicial review.

[7] Once the tribunal is a party, the court still has discretion as to the scope of participation to be accorded to the tribunal during the hearing. This involves balancing the need for fully informed adjudication against the importance of maintaining tribunal impartiality (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at paras. 57 and 59; Northwestern Utilities Ltd. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684, at p. 708-711; Toronto Star Newspapers Ltd. v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 (Div. Ct.), at para. 22). Although, in this case, there is another respondent who can participate in the proceedings, the Tribunal is in a unique position to present arguments concerning the applicable standard of review, jurisdictional issues, policy considerations, and the interrelationship of legislative provisions in the Workers’ Compensation Act and the Workplace Safety and Insurance Act, 1997. (See Ireland v. EFCO Canada Corp., 2017 ONSC 188 (Div. Ct.), at paras. 26-32.) That being said, considering the importance of maintaining tribunal impartiality, those portions of the Tribunal’s Factum from paragraphs 82 forward that address the reasonableness of its Decision will not be taken into account in determining this judicial review.

Standard of Review

[8] Hydro Ottawa argues that, even though the decisions of the Tribunal would normally attract a “reasonableness” standard of review, in the “unique” circumstances of this case, the standard of review should be “correctness”. Hydro Ottawa characterizes the issue in this case as involving a true jurisdictional question, namely the refusal of the Tribunal to exercise its statutory discretion and authority. Hydro Ottawa also argues that the issues raised in this case are of central importance to the legal system as a whole and are outside the Tribunal’s area of expertise.

[9] First, this is not a case where the Tribunal is determining whether it has jurisdiction to decide a particular matter under its statutory grant of power. There is no dispute that the Tribunal has the jurisdiction to determine the question of whether Mr. Featherstone’s Future Economic Loss benefits continue or not. Hydro Ottawa does not agree with the way in which the Tribunal exercised its authority under its legislative mandate; but it is not questioning that the Tribunal had the legislative authority to make a decision regarding Mr. Featherstone’s benefits. Thus, no “true jurisdictional question” is raised here.

[10] Second, the issue before the Tribunal in this case is one that is clearly within its area of expertise and, contrary to what was asserted in Hydro Ottawa’s Factum, the Tribunal has handled numerous cases in which the ability of the Board to review or alter Future Economic Loss benefits has been considered. In any event, and regardless of the number of cases decided by the Tribunal in which this issue has arisen, what is important is that the Legislature has recognized that the Tribunal has the expertise to decide all issues relating to workers’ compensation and workplace safety and insurance benefits, including the review of Future Economic Loss benefits.

[11] The Respondents argue that the Decision of the Tribunal in this case is subject to a “reasonableness” standard of review. We agree.

[12] The Tribunal is a specialized tribunal that has been given exclusive authority to hear appeals from the Board relating to workers’ compensation and workplace safety and insurance issues (Workplace Safety and Insurance Act, 1997, s.123(1)). A decision of the Tribunal is final and is not open to question or review in a court (s. 123(4)). The Tribunal decides how it is to conduct hearings (s. 124(3)) and determines its own practice and procedure (s. 131(1) and (2)). The Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, does not apply with respect to decisions and proceedings of the Tribunal (s. 131(3)). All of these provisions point to a reasonableness standard of review. (See Ireland, at para. 23; Toronto Star, at para. 27; Blatz v. Workplace Safety and Insurance Appeals Tribunal, 2016 ONSC 7259 (Div. Ct.), at para. 11; Campbell v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 6870, 316 O.A.C. 159 (Div. Ct.), at paras. 43 and 60-62.)

[13] In making its decisions, the Tribunal finds facts and decides questions of law, based on its understanding of the legislation, Board policies, and relevant jurisprudence. In this case, the task undertaken by the Tribunal involved the consideration of the facts (none of which were in dispute), the identification and interpretation of relevant legislative provisions in its home statutes, and the interpretation and application of Board policies. The interpretation by a tribunal of its own statutes “… ‘closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review” (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34 and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 26). The Tribunal has familiarity with the legislative provisions and Board policies in play in this case. The issue of Future Economic Loss benefits and when such benefits can be reviewed is a topic falling squarely within the Tribunal’s area of expertise.

[14] In Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 719, 92 O.R. (3d) 757, at para. 22, Borins J.A. made the following observations regarding the nature of the Tribunal:

It would appear that no court has ever interfered with any of the thousands of decisions of the Tribunal concerning an employee’s pre-accident earnings. This is no doubt due to the substantial degree of deference accorded to the Tribunal based on the Legislature’s decision to create the Board and the Tribunal, to vest in the Board the exclusive authority to calculate a worker’s pre-accident earnings, to delegate to the Tribunal the exclusive authority to review matters of workplace safety and insurance, to appoint to the Board and Tribunal members who are experienced in issues of workers’ compensation, and to protect the Board and the Tribunal with the toughest privative clause known to Ontario law. The privative clause is most important as it evidences a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized: Dunsmuir at paras. 45 and 48. Thus, reviewing courts can interfere only where the Tribunal’s decision is clearly irrational.

[15] There are no unique circumstances in this case that would mandate a correctness standard of review instead of the reasonableness standard that has regularly been applied to decisions of the Tribunal in the past.

Reasonableness of the Tribunal’s Decision

[16] The essence of the standard of reasonableness was set out in the following oft-quoted passage from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[17] In the Decision, the Tribunal gave a concise review of the arguments advanced by Hydro Ottawa on the appeal. The Tribunal reviewed in detail the legislative provisions from the Workers’ Compensation Act and the Workplace Safety and Insurance Act, 1997 and the relevant Board policy directives. No discrepancy or inconsistency between the legislative provisions and the policy directives, and no ambiguity in those provisions, was identified by Hydro Ottawa. Before the Tribunal, Hydro Ottawa argued that, for policy reasons, the legislative provisions and policy directives should not be interpreted so as to allow Mr. Featherstone to receive his full wages and his continuing Future Economic Loss benefits. At the hearing of this judicial review application, Hydro Ottawa took the position that there was only one possible interpretation of the legislative provisions applicable to this case, and that interpretation obliged the Board to discontinue Mr. Featherstone’s Future Economic Loss payments. Any other interpretation of the legislation resulted in an absurdity.

[18] As noted by the Tribunal in its Decision, Hydro Ottawa argued that, despite the clear wording of the relevant legislative provisions and policy directives to the contrary, the Board and the Tribunal were obliged to cancel Mr. Featherstone’s Future Economic Loss benefits because, not to do so, ignored the objective underlying the existence of such benefits in the first place, namely, to replace lost income. If there was no continuing loss of income arising from the workplace accident, then there was no further justification for continuing the benefits meant to replace such lost income. Additionally, Hydro Ottawa argued that Mr. Featherstone’s Future Economic Loss benefits should cease based on the overarching legislative purpose identified in the pre-amble to the Workers’ Compensation Act that the Board was to “act in a financially responsible and accountable manner”.

[19] The Tribunal rejected these policy arguments and saw no need to revert to them as an aid in interpreting legislation that was specific and unambiguous. This assessment was both reasonable and correct. As the Tribunal stated in paragraph 20 if its Reasons: “had the legislators intended for the Board to continue to maintain administrative control over injured workers perpetually, which could potentially cause large scale uncertainty, they would have done so explicitly under the legislation”. Interestingly, in oral argument, counsel for Hydro Ottawa noted that an underlying policy objective of the original workers’ compensation system, and current workplace safety and insurance system, is to provide certainty to both employers and employees.

[20] The Tribunal was well-positioned to recognize all of the policy objectives that inform the workers’ compensation/workplace safety and insurance system that has been legislatively put into place in this province. It was open to the Tribunal to conclude that the policy objectives highlighted by Hydro Ottawa were not the only policy objectives at play when this system was put into place. It was reasonable for the Tribunal to interpret the legislative provisions and policy directives in a way that respected the legitimate legislative objective of finality in the determination of an employee’s entitlement to Future Economic Loss benefits. It was open to the Tribunal to conclude that the Board’s interpretation of the relevant legislative provisions and policy directives had not led to an absurdity.

[21] The Decision of the Tribunal was transparent, in that it set out the arguments it was considering and its responses to those arguments. The Decision was intelligible, in that it outlined its understanding of how the various legislative provisions and policy directives operated together and led the Tribunal to its ultimate conclusion. The Decision was also justifiable on the basis of the unambiguous wording in the legislation and policy directives. Finally, the outcome was within the range of possible, acceptable outcomes, and is easily defensible in respect of the undisputed facts and the applicable legislative provisions.

Disposition

[22] The application for judicial review is dismissed.

Costs

[23] The parties have arrived at an agreement regarding costs. Hydro Ottawa shall pay costs to Doug Featherstone fixed in the amount of $4,500 inclusive of disbursements and HST. No other costs are payable.

Aitken J.

I agree MacLeod J.

I agree Ryan Bell J.

Released: January 18, 2019

2019 ONSC 4898

DIVISIONAL COURT FILE NO.: DC-18-2363

DATE: 20190118

BETWEEN:

HYDRO OTTAWA

Applicant

– and –

ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL)

Respondent

-and-

DOUG FEATHERSTONE

Respondent

REASONS FOR JUDGMENT

Aitken J.

MacLeod J.

Ryan Bell J.

Released: January 18, 2019

[^1]: Except s. 44(2.1)(g) and s. 44(2.4.4)