Court File and Parties

CITATION: Chen v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 2913

COURT FILE NO.: TBA

DATE: 20200508

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Chen v. Workplace Safety and Insurance Appeals Tribunal

BEFORE: D.L. Corbett J.

COUNSEL:

ENDORSEMENT (IN CHAMBERS)

[1] The applicants seek to commence and to schedule an application for judicial review from the decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) dated May 1, 2020 (2020 ONWSIAT 939). That decision is summarized in para. 70 of the Reasons as follows:

…given that the entire factual foundation for the Applicants’ cause of action stems from the workplace accident of September 26, 2011, I further find that the Applicants’ right to sue the Respondents is barred by virtue of subsection 28(1) of the WSIA. I ultimately find that the Applicant (Ms. Chen) was a worker of a Schedule 1 employer who is not entitled to commence an action against her Schedule 1 employer (Teva Canada Limited) or a worker employed by that Schedule 1 employer (Mr. Cako) in respect of her work-related injury. Therefore, the application of the Applicants to confirm and maintain their right to sue the Respondents is dismissed.

[2] The substantive portion of the applicants’ notice of application for judicial review runs for about 17 pages. It is much too long – the notice of application is supposed to set out the grounds of the application in summary form. It is not supposed to be a comprehensive argument of the applicants’ case.

[3] WSIAT has exclusive jurisdiction to decide whether a person’s right of action (the ability to sue in court) is taken away by the Workplace Safety and Insurance Act, 1997, SO 1997, c.16, Sch. A., s.31(10 and (2). A decision of WSIAT on this issue “is final and is not open to question or review in a court” (s.31(3)). Notwithstanding this very strong language, this court still retains jurisdiction to review the decision, but the deference accorded to WSIAT on review is high.

[4] The applicants are self-represented in this court, as they were before WSIAT. It is clear that they do not understand the court process: they have asked for a review hearing in this court that they estimate will require a week.

[5] That will not be happening: the bases on which to review WSIAT’s decision are limited, are based on the record and decision below, and ordinarily require no more than about two hours for oral argument by all parties in this court. The applicants are advised that they do not get a second, fresh hearing in this court. Rather, their task, before this court, is to point to aspects in the decision below that are important to that decision, and which were made without evidence, on the basis of a clear factual error, or are based on an unreasonable or wrong principle of law, or they must show that some aspect of the process before WSIAT was unfair to them and may have affected the result.

[6] It is clear from the applicants’ notice of application that they believe that WSIAT made findings of fact that are not correct. That is not a sufficient basis the court to intervene. Rather, the applicants must establish that these findings were not available to WSIAT on the basis of the evidence that was before WSIAT.

[7] It is also clear from the applicants’ notice of application that they are raising legal arguments that are not available in this case. For example, the applicants raise s.2(b) of the Canadian Charter of Rights and Freedoms – freedom of expression – which has nothing to do with this case, which concerns an altercation between two employees during which, Ms Chen claims, she was intentionally assaulted and injured by a co-worker.

[8] This said, there may be an arguable application here – the WSIAT made a finding that the applicants’ right to sue has been taken away by the Act. That is a serious finding, against their interest. The applicants may proceed with an application for judicial review, but they may not do it on the basis of their deeply flawed notice of application: it would put responding parties to unreasonable expense to respond to the case, as currently framed.

[9] If the applicants wish to proceed with their application, they shall serve on responding parties, and file with the court by email, a fresh notice of application. In this notice of application, they shall list, without argument:

(a) The findings of fact they challenge on the basis that they are unreasonable (that is, there is no proper basis in the evidence for these findings);

(b) The findings of law which they challenge as unreasonable or wrong (including any unreasonable or wrong failure to apply a legal principle);

(c) The incidents of procedural unfairness that they say deprived them of a fair process before WSIAT.

In most cases a list such as this should not require more than one or two pages. I will not limit the length of the applicants’ notice of application, but if they find that their list runs for many pages, they should understand that they are probably not providing notice of the grounds of their application, but instead are arguing their case in detail – something that they will have a chance to do in their factum and should not do in their notice of application.

[10] The applicants are also be responsible for arranging for transcripts of the hearing before WSIAT and then filing an application record with the materials on which they rely for their application in this court. They must also prepare and file a factum, which is their written argument, which must be double-spaced and no longer than thirty pages. Only when they have taken these steps will the court consider scheduling a date for oral argument.

[11] When preparing their written argument, the applicants should understand that they will have limited time to make their oral argument. I will not set the time limits for argument now. And I do understand that the applicants are self-represented and may need to address the court through an interpreter: because of these circumstances they may require more time than other litigants. However, it is important for the applicants to understand that their entire argument should be in their factum, and their oral argument will be largely for the purpose of addressing the court’s concerns and questions – oral argument is not a “re-do” of the original hearing. Nor is it a chance to repeat everything in the written argument out loud.

[12] Finally, the employer (and any other person who was a party before WSIAT) should be named as a party to the application for judicial review and served with any materials provided to the court.

[13] Order to go as follows:

(a) The Notice of Application is struck out, with leave to serve and file with the court by email a fresh notice of application by June 8, 2020;

(b) The applicants shall name all persons who were parties before WSIAT as respondents to the application, in addition to WSIAT;

(c) A date for this application shall not be set until the applicants have taken all the steps required to perfect their appeal in accordance with the Rules of Civil Procedure, unless the court subsequently orders otherwise;

(d) Any party may request a case management teleconference. A party so requesting shall provide the court with a proposed agenda of issues to be addressed at the case management conference at the time they request that the conference be scheduled.

(e) No costs of the steps taken thus far in this application.

[14] This order is effective from the date it is sent to the applicants by email. A signed version of the endorsement shall be provided to the parties in due course.

“D.L. Corbett J.”

Date: May 8, 2020