CITATION: Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319
DIVISIONAL COURT FILE NO.: 354/18
DATE: 20200123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Pattillo and Ramsay JJ.
BETWEEN:
LEON RADZEVICIUS in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ANDREW RADZEVICIUS (DECEASED)
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and TORONTO FIRE SERVICES – CITY OF TORONTO
Respondents
Justin Safayeni and Emily Quail for the Applicant
Andrew K. Lokan and Lauren Pearce for the Workplace Safety and Insurance Appeals Tribunal
Swarna Perinparajah for the City of Toronto
HEARD at Toronto: January 7, 2020
Swinton J.:
Overview
[1] The Estate of Andrew L. Radzevicius (Deceased) (the “estate” or the “applicant”) brought an application for judicial review of a decision dated April 30, 2014 made by the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “Act”). In that decision, the Tribunal dismissed the estate’s appeal from a decision of the Workplace Safety and Insurance Board (the “Board”) that denied benefits under the Act to the estate of Andrew Radzevicius, a firefighter who died of a heart attack (2014 ONWSIAT 945). In a decision dated August 15, 2017, the Tribunal refused to reconsider its decision (2017 ONWSIAT 2450).
[2] In this application for judicial review, the applicant argues that the two Tribunal decisions are unreasonable, because the Tribunal failed to provide a logical and justifiable explanation for its conclusions. In my view, the Tribunal’s reasons, read in their entirety, demonstrate a logical and justified explanation for its decision that the deceased was not eligible for compensation or benefits under the Act. The denial of benefits was reasonable, given the terms of the legislation and governing Board policies and the evidence in this case, as was the refusal of reconsideration. Therefore, I would dismiss the application for judicial review.
The Factual Background
[3] The deceased was 47 years old at the time of his death. He worked his last shift as a firefighter on April 11, 2010 and died on April 13, 2010 of a myocardial infarction due to coronary atherosclerosis. Hypertensive cardiomyopathy was a condition contributing to the death, but not causally related to the immediate cause (i.e. the myocardial infarction). In the opinion of the pathologist, Dr. Lentz, a mature scar revealed a previous myocardial infarction at least six weeks before death. Microscopic evidence showed a more recent myocardial infarction at least two weeks old. The time estimates were approximate. Dr. Lentz concluded,
Given that no evidence of recent thrombus or plaque hemorrhage was present, death is most likely due to a complication of the infarctive process, such as a cardiac arrhythmia and/or congestive cardiac failure.
[4] The deceased had undergone a medical examination in 2008 and was found to be in good health.
[5] The deceased had attended a call to an apartment building on February 7, 2010, about nine weeks before he died. The tenant had placed a hamburger patty directly onto the burner of his stove with the result that the apartment “filled with smoke”, according to the emergency incident report. The firefighters ventilated the apartment. There was no fire, and only the stove element was damaged.
[6] Two co-workers gave statements to the Board that on a call in approximately February, the deceased had to climb several flights of stairs carrying 100 pounds of gear. After climbing three or four flights, the deceased’s breathing was short and fast. His face was ashen or greenish, and he was sweating profusely. He was told to stay behind but he carried on. Fire department records show that the deceased’s crew was on scene for 13 minutes. On the return to the station, the deceased reported he was fine, and he looked better. He did not seek medical attention.
[7] On April 10, 2010, when the deceased showed up for his last shift, he was sweating, and his face was greenish or pale. He said that he had had a late night. The crew did not attend any fires on that last shift, although they did attend training on an aerial device.
[8] The deceased completed his shift early on the morning of April 11 and went home. Subsequently, a co-worker found his body after he failed to report for his scheduled work shift on April 13.
The Legislative Background
[9] Two provisions of the Act that deal with entitlement to benefits are relevant to this proceeding. Section 13 establishes the general entitlement to benefits for workers who have suffered a personal injury arising out of or in the course of their employment. It reads:
13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
[10] Section 15.1 is a special provision that deals with firefighters in prescribed circumstances. It creates a rebuttable presumption that a heart injury has arisen out of and in the course of the firefighter’s employment, unless the contrary is shown.
15.1 (1) If a worker is prescribed under clause (8) (a) and sustains an injury to the heart in circumstances prescribed under clause (8) (c), the injury is presumed to be a personal injury arising out of and in the course of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown.
[11] Ontario Regulation 253/07 (the “Regulation”) prescribes the circumstances in which a firefighter’s heart injury will be presumptively compensable pursuant to s. 15.1 of the Act. Firefighters are prescribed under clause (8)(a) of the Regulation. The Regulation also prescribes the circumstances mentioned in s. 15.1 of the Act that give rise to the rebuttable presumption as follows:
- For the purposes of subsection 15.1 (1) of the Act, the worker must have sustained the heart injury while, or within 24 hours of,
(a) attending a fire scene in the performance of his or her duties as a full-time firefighter, part-time firefighter, volunteer firefighter or fire investigator …
[12] Section 159 of the Act authorizes the Workplace Safety and Insurance Board to establish policies concerning the interpretation and application of the Act, and two of its Policies are relevant to this proceeding. Such policies must be applied by the Tribunal (Act, s. 126(1)).
[13] First, WSIB Policy 15-03-12, Heart Injuries in Firefighters and Fire Investigators, deals with heart injuries in the context of s.15.1 of the Act. It provides:
A heart injury in this policy means a medical diagnosis of
• acute myocardial infarction (myocardial necrosis caused by ischemia) … or
• cardiac arrest (abrupt cessation of cardiac pump function, which may be reversible but will lead to death in the absence of prompt intervention) …
The worker must have sustained the heart injury while, or within 24 hours of
• Attending a fire scene in the performance of his or her duties as a firefighter or fire investigator; or
• Actively participating in a training exercise that is related to his or her duties as a firefighter or fire investigator and that involves a simulated fire emergency.
A fire scene or a simulated fire emergency requires the presence of combustion or burning materials giving rise to smoke and/or flames.
The presumption may be rebutted if it is established that the employment was not a significant contributing factor to the occurrence of the heart injury.
[14] Second, WSIB Policy 15-03-10, Heart Conditions, deals with the circumstances in which the Board will accept that a heart injury is compensable pursuant to s. 13 of the Act. It provides that a heart injury will be compensable where either a “causal relationship is shown between the cardiac condition and an accident at work” or “the cardiac condition is established as a disablement ‘arising out of and in the course of employment.’” Pursuant to this Policy, the Board provides guidelines and accepts that a worker is entitled to benefits in specified circumstances. For purposes of the present application for judicial review, the applicable provision is “inhalation of smoke and various noxious gases and fumes, e.g. firefighters”. This is followed by a note stating “unusual physical exertion for the individual and/or acute emotional stress with no significant delay in the onset of symptoms.”
The Applicant’s Position
[15] The Applicant argues that the Tribunal acted unreasonably in
a. deciding that the statutory rebuttable presumption in s. 15.1 did not apply;
b. deciding that without the presumption the claim could not meet the requirements of s. 13 of the Act; and
c. refusing to reconsider its decision based on new evidence about the demanding hours of work the deceased had been performing in the weeks preceding his death.
The Standard of Review
[16] The standard of review is reasonableness. None of the questions before the Court are constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between administrative bodies. The Act also contains a robust privative clause. The Legislature has clearly signaled its intention that the Tribunal’s decisions be given great deference (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 33, 53).
Reasonableness Review
[17] In the Supreme Court of Canada’s recent decision in Vavilov, the majority gave guidance as to how a court should conduct a reasonableness review of an administrative tribunal’s decision. Most importantly, the reviewing court must give careful attention to the reasons of the tribunal (at para. 83). The majority stated,
Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem .... Instead, the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale for the decision and the outcome to which it led - was unreasonable (at para. 83).
Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process ... (at para. 86)
[18] The majority describe a reasonable decision as one “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (at para. 85). Thus, the reviewing court considers both the outcome and the reasoning process (at para. 87).
[19] The majority also explain that a reviewing court should not overturn a decision because of a “minor misstep” in reasoning. Rather, the reviewing court “must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable” (at para. 100). At para. 102, the Court repeated statements from earlier cases:
However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 5; Southam, at para. 56.
The majority also emphasized that reasons should be read in light of the record and with sensitivity to the administrative regime in which they were given (at paras. 94 and 103).
[20] With respect to the reasonableness of the outcome, the majority provided guidance as to the legal and factual constraints that may constrain a decision maker (see the summary of factors at para. 106 and the discussion of those factors that follows).
The Tribunal’s Decisions are Reasonable
The Tribunal’s conclusion respecting [s. 15.1](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html#sec15.1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html)
[21] The Tribunal’s task was to determine the applicability of the rebuttable presumption in s. 15.1 that the deceased’s heart attack arose out of and in the course of his employment as a firefighter. Before the Tribunal, this required an examination of circumstances around the time of death in April, 2010, as well as earlier workplace related events. For purposes of this application for judicial review, the only issue respecting the application of s. 15.1 is whether the Tribunal reasonably concluded that the applicant failed to prove that the deceased suffered a heart attack within 24 hours of attending a fire scene on February 7, 2010, and hence the presumption did not apply.
[22] In my view, the Tribunal’s conclusion that the deceased was not entitled to benefits pursuant to s. 15.1 of the Act was a reasonable outcome, given the evidence before the Tribunal and the legal provisions that apply. The Tribunal’s decision was also based on internally coherent and justified reasoning. While the reasons are not perfect, the Tribunal did provide an acceptable and logical explanation for its conclusion with respect to the application of s. 15.1 of the Act, when those reasons are read as a whole and in light of the record.
[23] The Tribunal carefully set out the evidence before it, as well as the operative legislation and Board policies. While its analysis of the application of s. 15.1 of the Act is mainly found in paragraphs 35 and 36 of its reasons, those paragraphs should not be read completely in isolation from the rest of the reasons, where the Tribunal discusses the evidence in more detail.
[24] The Tribunal’s first reason for refusing to apply the presumption in s. 15.1 of the Act was because the attendance to the call on February 7, 2010 was not an attendance at a “fire scene” (at para. 35). Section 3 of the Regulation requires that a firefighter sustain a heart injury while, or within 24 hours of, attendance at a “fire scene”.
[25] The Tribunal is required to apply Board policies (Act, s. 126(1)). Policy 15-03-12 states that a fire scene “requires the presence of combustion or burning materials giving rise to smoke and/or flames.”
[26] The Tribunal described the evidence concerning the events of February 7 at various parts of its reasons, including paragraphs 14, 17 and 18. It considered the Toronto Fire Services emergency incident reports of this and other incidents in which the deceased was involved prior to his death.
[27] I note that the Tribunal refers to the February 7, 2010 attendance as a “fire call” in paragraph 14. However, in describing that call and others, it relies on the emergency incident reports and makes a distinction between “fire scenes” and other calls, such as false alarms. According to those reports, the deceased did not attend any fire scenes in February and March, 2010. The Tribunal notes that the February 7, 2010 incident did not involve any fire, although there was smoke (at paras. 18 and 35).
[28] The Tribunal was not satisfied that the attendance on February 7, 2010 was an attendance at a fire scene within the meaning of that term in the Policy. The definition of fire scene “requires the presence of combustion or burning materials giving rise to smoke and/or flames.” As there was no actual fire, the Tribunal was not satisfied that the incident was a fire scene.
[29] That is a reasonable conclusion, given the wording of the Policy and the evidence. “Combustion or burning materials” is a requirement, not just the presence of smoke at the scene. It was reasonable for the Tribunal to conclude that there must be a fire in order to have a fire scene. I note that the definition of “combustion” in the Merriam Webster Dictionary (on line edition) is “an act or instance of burning.” The definition of “combustion” in The Oxford Dictionary (on line) is “the process of burning something.”
[30] The evidence supports the Tribunal’s conclusion there was no fire during the February 7 call. The emergency incident report states that the response type was “(22) Pot on Stove (no fire)”. The section entitled “Officer’s Report” mentions there was smoke and a damaged stove element, but makes no mention of fire or burning material.
[31] Given the wording of Policy 15-03-12 and the evidence, the Tribunal reasonably concluded that the presumption could not be invoked with respect to events around February 7, because that attendance was not to a fire scene. There is a logical and sufficient explanation of its conclusion.
[32] The Tribunal could have ended its analysis there and gone on to address the application of s. 13 of the Act. However, it chose to respond to the argument raised by the deceased’s father at the hearing that the deceased had suffered a heart attack within 24 hours of his work on February 7, 2010.
[33] At paragraph 36 of the reasons, the Tribunal then assumed that there had been an attendance at a fire scene and made an alternative finding with respect to the operation of the Policy and the application of the Regulation. Specifically, the Tribunal concluded that the estate had not proven that the deceased suffered a heart attack at work on February 7, 2010 or within 24 hours thereafter as required by s. 3 of the Regulation. Accordingly, the presumption in s. 15.1 of the Act did not apply.
[34] The Tribunal gave three reasons to support its conclusion (at para. 36), and I set them out in full:
In any event, even if the February 7, 2010 incident was a “fire scene,” there are other reasons for finding that the requirements of Ontario Regulation 253/07 are not met. According to the call records, the worker was only at the February 7, 2010 scene for about 13 minutes such that he would not have had the time to go up and down the stairs too many times. Furthermore, the timing of this event, on February 7, 2010, was nine weeks prior to the worker’s death and therefore not entirely consistent with Dr. Lentz’ post-mortem examination of a six-week old infarction. Finally, and most significantly, other than anecdotal evidence from two co-workers regarding his symptoms, there is no medical confirmation of the worker having suffered an infarction at that time. The worker did not seek medical attention; rather, he indicated feeling “fine” shortly after the event. While the estate submitted that it was the fire captain’s obligation to refer the worker for medical attention, in our view, having been advised by the worker that he felt “fine,” the fire captain and co-workers could not have forced the worker to seek medical attention when he himself did not want such. Ultimately, only the worker was in a position to make the decision as to whether to seek medical attention. He ultimately did not feel that any symptoms he was having warranted such. For all of these reasons, we conclude that the requirements of Ontario Regulation 253/07 are not met.
[35] The applicant argues that the Tribunal’s reasons are flawed. I agree with the submission that there was a misstatement with respect to Dr. Lentz’ opinion. Dr. Lentz had stated that there had been an earlier heart attack “at least” six weeks before the deceased’s death. Therefore, it was an error to say that a heart attack nine weeks before death was “not entirely consistent” with Dr. Lentz’ opinion.
[36] However, in my view, this is not a fatal flaw in the Tribunal’s reasoning. The Tribunal stated that the most significant reason for its decision was the lack of contemporary medical evidence supporting the conclusion the deceased suffered a heart attack on February 7. It referred to the “anecdotal” evidence of the two co-workers. While it did not analyze that evidence in detail in paragraph 36, the evidence had been summarized at paragraphs 14 and 15 of the reasons, and it must be taken that the Tribunal was aware of the details of that evidence.
[37] The two statements are also found in the Record of Proceedings, and a court on judicial review can look to the evidence that was in the record to see if it supports the decision (Vavilov at para. 103). The co-workers were not called as witnesses at the hearing. They were interviewed by the Board’s investigators in the fall of 2010, and written statements in the Record were signed in the fall of 2011. They commented on the fact that the deceased had appeared pale and sweaty and breathing short and fast during an incident that was probably in February, 2010. The deceased’s captain asked if he were okay when they were going upstairs and whether he needed to rest. The deceased refused to stop and said he was fine. One of the co-workers, Steve Wood, expressed the opinion that the deceased looked similar to others who are having a heart attack. When the crew returned to the fire hall, the deceased said he was fine, and he looked better.
[38] The applicant argues that it was unreasonable to refer to this evidence as “anecdotal” and to say there was no medical evidence to support the conclusion of a heart attack, because firefighters are trained to recognize the signs of a heart attack. I disagree. The Tribunal was entitled to describe the evidence this way and to find the evidence insufficient, given that there was no contemporaneous medical evidence to prove that the deceased suffered a heart attack during that fire call or within 24 hours later.
[39] The Tribunal also noted that the deceased’s crew was only on scene for thirteen minutes, and he would not have been going up and down stairs for a significant time. I take from this that the Tribunal did not believe the deceased was engaged in unusual physical exertion for a firefighter (a conclusion that is explained in more detail in the following paragraph of the reasons dealing with s. 13 of the Act).
[40] A reviewing court is not to interfere with findings of fact and the weighing of evidence by an administrative tribunal except in exceptional circumstances (Vavilov at para. 125). This is a specialized Tribunal, sitting as a panel of three members – a neutral chair and two member representatives, one representing employers and one representing workers. In this case, their decision was unanimous.
[41] In my view the Tribunal’s conclusion that the applicant had not proved the deceased suffered a heart attack around February 7 is reasonable, given the evidence that was before it and the lack of medical evidence around the time of the call. Moreover, the reasons for the conclusion that the rebuttable presumption in s. 15.1 of the Act was not met were adequate to explain the conclusion.
[42] While there was a misstatement of Dr. Lentz’ estimate of the time of the first heart attack, this does not constitute a fundamental flaw in the reasoning of the Tribunal. There is a line of analysis that leads to the conclusion – first, the February 7 call was not a call to a fire scene; second, and additionally, the evidence did not establish that the deceased suffered a heart attack within 24 hours of working on February 7, mainly because of the lack of medical evidence to prove he had a heart attack either that day or within 24 hours of that incident. For either reason, the requirements of the Policy and s. 3 of the Regulation were not met, and accordingly, the rebuttable presumption in s. 15.1 did not apply.
The Tribunal’s conclusion respecting s. 13 was reasonable
[43] In order for the deceased to qualify for benefits pursuant to s. 13 of the Act, the estate had to prove, on a balance of probabilities, that he suffered a heart attack that arose out of and in the course of his employment. The Tribunal was also required to apply Policy 15-03-10. To succeed, the estate would have to prove on a balance of probabilities that the deceased’s cardiac condition arose from “unusual physical exertion”.
[44] The Tribunal concluded that the claim could not be allowed as work-related, because the injury had not been proven to fall within Policy 15-03-10. It explained why it was not satisfied that the deceased suffered a heart attack because of unusual physical exertion at work, and so the Policy did not apply (at para. 37):
... even if the worker had to go up and down the stairs with a high rise kit, according to the call records, he would only have done this for a maximum of 13 minutes and, according to Mr. Mitchell, it would not be considered unusual for a firefighter to go up and down stairs.
[45] It was for the Tribunal to decide what would be “unusual physical exertion” for a worker such as the deceased in the course of his employment. The Tribunal reasonably concluded that firefighters have a physically active job, and it sometimes involves climbing flights of stairs. In its view, climbing and descending stairs for 13 minutes was not unusual physical exertion for a firefighter.
[46] The Tribunal also observed that there were non-occupational explanations for the deceased’s death. In particular, there was no evidence that the coronary atherosclerosis and hypertensive cardiomyopathy, discussed in the post-mortem examination report as significant conditions contributing to death, were related to the deceased’s firefighting duties.
[47] The Tribunal found, on a balance of probabilities, that the deceased’s firefighting duties did not significantly contribute to his death. That is a reasonable conclusion, given the legislation and Policies and the evidence. The conclusion is explained logically and coherently. The explanation is brief, but it is sufficient to show why the Tribunal found that the deceased was not entitled to benefits pursuant to s. 13 of the Act.
The reconsideration decision
[48] The estate sought reconsideration of the Tribunal’s decision. Pursuant to s. 129 of the Act, the Tribunal may reconsider a decision. However, its Practice Direction notes that reconsiderations are rarely granted (s. 2.1).
[49] The power to order reconsideration is discretionary. Section 2.5 of the Practice Direction states that the Tribunal “might” reconsider a decision in four circumstances – for example, if significant new evidence is discovered which was not available at the time of the hearing and which would have likely changed the outcome, or the decision overlooked an important piece of evidence.
[50] The deceased’s father requested reconsideration on the basis that there was new evidence – namely, evidence of the deceased’s heavy work schedule immediately prior to his death – that substantially increased the risk that the deceased’s fatal heart attack arose out of his employment. The evidence related to the 72 hour work schedule in the weeks prior to his death in April, 2010.
[51] The applicant now submits that the Tribunal’s reasons were deficient, because it did not set out the factors in s. 2.5 of the Practice Direction and apply them explicitly.
[52] I disagree. The Tribunal set out the appropriate test to be applied when deciding whether to reconsider: paragraph 3 of the reasons sets out the exact test found in s. 2.4 of the Practice Direction. The Tribunal did not err in failing to set out the factors in s. 2.5. Those factors are illustrative, not exhaustive.
[53] The Tribunal refused to exercise its discretion to order reconsideration with respect to the impact of the work schedule because the evidence was not new, having been before the Tribunal in the original hearing, and it was inappropriate to now raise a new argument. As well, the Tribunal observed that there was still no medical evidence of substance to support this argument that the work schedule caused the deceased’s heart attack.
[54] The applicant’s counsel argues that this conclusion is unreasonable, because the deceased’s father was not legally represented when he acted at the Tribunal hearing. As a self-represented litigant, he should be given leeway if he neglected to raise this argument.
[55] The Tribunal reasonably exercised its discretion to refuse the request. This was not really a case of new evidence that was not available at the time of the hearing. Moreover, there was still no medical evidence to connect the work schedule with the heart attack in April, 2010. To obtain reconsideration, the requesting party must demonstrate a significant defect that if corrected, “would probably change the result of the original decision.” Without supporting medical evidence, the Tribunal reasonably concluded that this element of the test for reconsideration was not met.
Conclusion
[56] Despite the excellent argument made by counsel for the applicant, I am not persuaded that this is a case where the Court should intervene on judicial review. The Tribunal’s reasons are not perfect, nor are they required to be.
[57] Vavilov stresses the importance of the reasoning process as well as the outcome, given the legal constraints and the evidence before the Tribunal. However, Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals. The Supreme Court drew on its past jurisprudence when it gave guidance as to how to engage in reasonableness review. I note that at para. 75, the majority emphasized that their approach is not “fundamentally dissimilar” to that of the dissenting judges, stating,
... reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus.
[58] Here, there was no fundamental flaw or gap in the Tribunal’s analysis. It satisfied its obligation to explain its conclusions. Its reasoning was coherent and logical, and its determination that the deceased was not entitled to benefits was within a range of reasonable outcomes, based on the legislation, the operative Policies and the evidence.
[59] Accordingly, I would dismiss the application for judicial review. The respondents do not seek costs, and none are awarded.
Swinton J.
I agree
Pattillo J.
I agree
Ramsay J.
Released: January 23, 2020