Insurance Appeals Tribunal), 2021 ONSC 7625

DIVISIONAL COURT FILE NO.: DC-21-094-JR DATE: 20211125

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

McWatt A.C.J.S.C.J., Sachs and Lococo JJ.

BETWEEN:

XIAOLI CHEN (CATHY) and YEXING XIE

Hashim Syed, for the applicants

Applicants

– and –

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, TEVA CANADA LTD. and HAKIM CAKO

Michelle A. Alton, for the respondent Workplace Safety and Insurance Appeals Tribunal

Hendrik Nieuwland, for the respondents Teva Canada Ltd. and Hakim Cako

Respondents

HEARD: November 9, 2021, at Toronto by video conference

R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] The applicants Xiaoli Chen and Yexing Xie bring an application for judicial review of Decision No. 3144/18 of the Workplace Safety and Insurance Appeals Tribunal dated May 1, 2020 (reported at 2020 ONWSIAT 939). The Tribunal decision dismissed the applicants’ application under s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, (the “WSIA”) to permit the applicants to continue their court action against the respondents Teva Canada Ltd. (Ms. Chen’s former employer) and Hakim Cako. The Tribunal held that the applicants are statute-barred by s. 28 of the WSIA from proceeding with their action.

[2] In their judicial review application, the applicants seek to have the Tribunal’s decision set aside on the grounds that the Tribunal made errors of fact and law and the applicants were denied procedural fairness. For the reasons below, I would dismiss the application.

II. Background

(a) Disputed incident

[3] The applicant Ms. Chen and the respondent Mr. Cako were analytical chemists employed in a quality control laboratory by the respondent Teva. On September 26, 2011, Ms. Chen and Mr. Cako were involved in a disputed incident relating to shared laboratory equipment. Mr. Cako set up equipment housed inside a fume hood before going for his lunch break. When he returned, Ms. Chen was using the equipment inside the fume hood. Mr. Cako approached her, and they began a conversation about the use of the equipment.

[4] Mr. Cako alleged that during this conversation, he began to smell chemical fumes emanating from the fume hood and observed that the fume hood sash (a glass door/window to the fume hood, which may be raised and lowered) was in a relatively high position. Mr. Cako pulled the sash down with his left hand. The sash struck Ms. Chen on her right arm, resulting in bruising. Ms. Chen reported the incident to her supervisor. She alleged that there were no chemical fumes and that Mr. Cako had intentionally struck her arm with the sash.

[5] A human resources manager conducted an investigation and completed an investigation summary report dated October 4, 2011. She concluded that the disputed incident was an accident and that Mr. Cako was responding to a safety issue of fumes emanating from the fume hood. Ms. Chen did not return to work after September 30, 2011, alleging that she did not feel safe doing so and was suffering from mental distress.

[6] Ms. Chen applied to the Workplace Safety and Insurance Board (the “WSIB”) for workers’ compensation benefits under the WSIA, alleging traumatic mental distress: see WSIA, s. 13(4). On November 17, 2011, her claim was denied.

(b) Civil action

[7] In September 2013, the applicants commenced an action in the Superior Court of Justice, alleging that Ms. Chen’s was constructively dismissed from her employment with Teva on or about September 26, 2011. She claimed damages (including pay in lieu of notice) from Teva for constructive dismissal, breach of contract, mental distress, intentional infliction of mental distress, discrimination and other causes of action, as well as damages from Mr. Cako for assault and battery. She also claimed punitive, aggravated and bad faith damages. In addition, Ms. Chen’s husband (the applicant Mr. Xie) and their son claimed damages under the Family Law Act, R.S.O. 1990, c. F-3.

(c) Right to sue application

[8] In March 2017, the applicants brought an application before the Tribunal under s. 31 of the WSIA, seeking a declaration that their “right to sue” in civil court had not been taken away by operation of s. 28 of the WSIA.

[9] Section 28(1) denies a worker employed by a Schedule 1 employer the right to commence an action against the employer and the employer’s workers in respect of a workplace injury or disease. If the employer’s workers were involved in the circumstances in which the worker sustained the injury, the prohibition applies only if the workers were acting in the course of their employment: WSIA, s. 28(3). These provisions are part of the workplace insurance scheme set out in the WSIA, under which Ontario workers lose the right to sue their employer for a work-related injury in exchange for entitlement to workers’ compensation benefits without having to prove that their employer was at fault for the injury (part of the so-called “historic trade-off”): see Morningstar v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2021 ONSC 5576 (Div. Ct.), at paras. 46-51, leave to appeal to C.A. requested, M52790; WSIA, s. 26(2).

[10] The applicants’ s. 31 application was heard before Vice-Chair L. Petrykowski in a three-day hearing in January 2020. The applicants were self-represented. Mr. Xie conducted the applicants’ case. At the applicants’ request, Ms. Chen participated by video conference from another hearing room. A Mandarin interpreter was present to assist Ms. Chen, English not being her first language. A total of five witnesses testified, consisting of Ms. Chen and four witnesses from Teva, including Mr. Cako.

III. Decision under review

[11] In its written decision dated May 1, 2020, the Tribunal denied the application. As explained further below, the Vice-Chair found that the disputed incident was an accident that occurred in the course of Ms. Chen’s and Mr. Cako’s employment, and that Ms. Chen was entitled to claim workers’ compensation benefits under the WSIA within six months following the decision. The Vice-Chair also held that the applicants’ civil action was barred in its entirety by s. 28 of the WSIA, finding that all of the civil claim was inextricably linked to the workplace accident.

(a) Accident vs. assault

[12] The applicants’ position was that Mr. Cako intentionally assaulted Ms. Chen, taking his actions outside the course of employment. The Tribunal rejected this argument, finding that Mr. Cako believed there were fumes emanating from the fume hood, which was why he pulled down the sash, and that he did not intend to strike Ms. Chen. The Vice-Chair relied on Mr. Cako’s testimony, as well as documentary evidence. The Vice-Chair accepted Teva’s investigation summary report as “largely represent[ing] the material facts surrounding the incident of September 26, 2011”, with one exception. The Vice-Chair noted that while the report suggested Mr. Cako explained to Ms. Chen that he smelled fumes, both Mr. Cako and Ms. Chen testified that he did not mention this prior to pulling down the sash. The Vice-Chair accepted that as fact.

(b) In the course of employment

[13] After considering WSIB policies and prior Tribunal decisions, the Vice-Chair held that the circumstances associated with the disputed incident established that it occurred “in the course of employment” and fell within the purview of the WSIA. Ms. Chen was therefore entitled to pursue a claim for workers’ compensation benefits in respect of any injuries sustained in the accident. Key to that finding was the Vice-Chair’s conclusion that Ms. Chan’s injury was the result of a workplace accident, not an intentional assault.

(c) Degree to which the claims are statute-barred

[14] Commencing at para. 61 of the 72-paragraph Tribunal decision, the Vice-Chair then considered the degree to which the applicants’ civil claims were barred by s. 28 of the WSIA. At para. 66, he noted that in previous decisions, the Tribunal has generally found that the right to bring an action for wrongful dismissal is not barred by the WSIA except in an exceptional case “where the circumstances of the wrongful dismissal claim are inextricably linked to the workplace injury.” He cited a previous Tribunal decision which states that the Tribunal’s task is to consider “whether the claim is separate and distinct from the workplace accident” (and therefore not barred from proceeding) “or whether it is intrinsically related to the workplace accident” (and therefore barred): see Decision No. 977/03R, 2004 ONWSIAT 580, at para. 16.

[15] The Vice-Chair also referred to Decision No. 1227/19, 2019 ONWSIAT 2324, in which the Tribunal found that such an exception existed in that case, holding that the constructive dismissal claim was statute-barred. In that decision, the Tribunal found that “the foundational facts for the cause of action are inextricably linked to workplace harassment, an injury that is compensated under the WSIA,” removing the worker’s right to sue: Decision No. 1227/19, at para. 34. The Tribunal then went on to state that “the work accident causing personal injury and the claim for constructive dismissal in this case are inextricably linked factually, and not separate and remote”: Decision No. 1227/19, at para. 41. As discussed further below, the Divisional Court recently overturned the result in Decision No. 1227/19: see Morningstar, at para. 125.

[16] In the decision currently under review, at para. 68, the Vice-Chair then referred to the respondents’ submission that Ms. Chen’s workplace accident and Teva’s accident investigation “gave rise to all the damages claimed” in the statement of claim for the civil action. The Vice-Chair went on to find as follows (at paras. 69-70):

In my view, the foundation for the cause of action brought forward by the Applicants is the workplace accident of September 26, 2011. The Applicants have claimed that Ms. Chen was subjected to an incident of workplace violence on September 26, 2011 and was constructively dismissed on or around that same date. It cannot be reasonably concluded that this cause of action was somehow separate and remote from the workplace accident. It can only be concluded that it was inextricably linked to the workplace accident based on the totality of evidence before me.

As such, 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.

[17] On that basis, the Vice-Chair denied the application, holding that the applicants were statute-barred from proceeding with their civil action against Teva and Mr. Cako.

IV. Standard of review and matters to be determined

[18] At the judicial review hearing, applicants’ counsel made two submissions:

i. The Tribunal’s finding that the disputed incident was an accident rather than an assault was unreasonable since the finding was based on a misapprehension of the evidence on a key point.

ii. The Tribunal unreasonably found that the constructive dismissal and related claims in the applicants’ civil action could not proceed based on a decision that has been overturned by the Divisional Court.

[19] In the applicants’ factum (originally prepared when they were still self-represented), they also raise certain procedural fairness issues that their counsel indicated they are not abandoning. I will briefly summarize these issues at the end of these reasons.

[20] Where a court reviews the merits of an administrative decision, there is a presumption that the standard of review is reasonableness: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 23. There is no dispute that reasonableness is the standard that applies to the merits review in this case. On questions of procedural fairness, the task of the reviewing court is to determine whether the Tribunal has complied with its duty of procedural fairness in the individual circumstances of the adjudication: see Vavilov, at para. 77.

[21] The matters to be determined are therefore as follows:

i. Reasonableness of accident finding: Was the Tribunal’s finding that the disputed incident was an accident rather than an assault unreasonable because it was based on a misapprehension of the evidence?

ii. Reliance on overturned decision: Did the Tribunal’s unreasonably find that the civil action was statute-barred based on a previous Tribunal decision that was subsequently overturned?

iii. Procedural fairness: Did the Tribunal comply with its duty of procedural fairness in the circumstances of this case?

[22] I will address each of these matters in turn.

V. Reasonableness of accident finding

[23] Was the Tribunal’s finding that the disputed incident was an accident rather than an assault unreasonable because it was based on a misapprehension of the evidence?

[24] Before the Tribunal, the applicants argued that because Mr. Cako intentionally struck Ms. Chen’s arm with the fume sash, Mr. Cako was not “acting in the course of [his] employment”, as required under s. 28(3) of the WSIA for the statutory bar in s. 28(1) to apply to the civil action. In the Tribunal’s decision, the Vice-Chair rejected this position, finding that the disputed incident was an accident and not an assault.

[25] The applicants submit that the Tribunal’s conclusion that the disputed incident was an accident turned on their finding that Mr. Cako “quickly and instinctively pulled down the glass sash into a lower/safer position”: see Tribunal decision, at para. 52. In his testimony, Mr. Cako was questioned as to whether he pulled the sash down quickly or slowly. He answered that “I didn’t use excessive force…. I just lowered the sash. Not very quickly. No, not quickly.”

[26] According to the applicants, the Vice-Chair’s finding that Mr. Cako pulled down the sash “quickly and instinctively” was inconsistent with Mr. Cako’s own evidence that he lowered the sash “not quickly” or “not very quickly.” On that basis, the applicants submit that the Tribunal misapprehended the evidence on a point that was fundamental to their decision, thereby undermining the reasonableness of the decision.

[27] I disagree. Reading the decision as a whole, it is reasonable to conclude that the Vice-Chair’s reference to “quickly” was not a reference to how quickly Mr. Cako moved the sash down, but to how quickly he made the decision to do so. For example, at para. 54, the Vice-Chair notes that both Mr. Cako and Ms. Chen testified that Mr. Cako pulled down the sash “without warning … [and without] mention of emanating fumes before doing so,” which the Vice-Chair accepted as fact. In a similar vein, at para. 53, the Vice-Chair refers to the Worker’s Report of Injury dated October 10, 2011, which noted that Ms. Chen hurt her right arm when the sash of the fume hood was “pulled down suddenly” by Mr. Cako.

[28] I find that there is no merit to this ground of appeal. The Tribunal’s conclusion that the disputed incident was an accident and not an intentional assault was not based on a misapprehension of the evidence and was reasonable.

VI. Reliance on overturned decision

[29] Did the Tribunal’s unreasonably find that the civil action was statute-barred based on a previous Tribunal decision that was overturned?

[30] In counsel’s oral submissions, the applicants argued that the Tribunal unreasonably found that Ms. Chen’s constructive dismissal and related claims could not proceed based on a decision that has been overturned by the Divisional Court, that is, Decision No. 1227/19, reversed in Morningstar upon judicial review. That submission was not addressed in the parties’ factums, since they were prepared before the court’s decision in Morningstar was released.

(a) The Tribunal decisions in Morningstar

[31] In that case, Ms. Morningstar complained to her employer about harassment and bullying by her co-workers and managers. The employer conducted an internal investigation, which found that no harassment had occurred. Ms. Morningstar complained to the Ontario Ministry of Labour, which ordered an independent workplace investigation. That investigation determined that the worker’s coworkers and managers had engaged in workplace harassment. The employer delayed in providing the investigation report to Ms. Morningstar, before doing so in redacted form. Ms. Morningstar, who had gone on medical leave for mental stress, refused to return to work and resigned her position, alleging that the employer’s response to the independent investigation report was inadequate. She brought a civil action against her employer, claiming damages on several bases, including harassment and constructive dismissal. She also sought aggravated, moral and punitive damages. In her statement of claim, she alleged that her employer failed to address and participated in the campaign of harassment and bullying against her, creating a toxic work environment.

[32] The employer then filed an application with the Tribunal under s. 31 of the WSIA, seeking a declaration that Ms. Morningstar’s right to bring a civil claim was barred by the WSIA. At the application hearing, Ms. Morningstar relied on the allegations in her statement of claim, which the Tribunal accepted as true for the purposes of its decision (the Tribunal’s usual practice): see Morningstar, at para. 20. As noted in the Tribunal decision, at para. 27, there was no dispute that Ms. Morningstar and her co-workers and managers were in the course of their employment when the alleged harassment and bullying occurred.

[33] To determine whether the WSIA removed Ms. Morningstar’s right to bring a civil action, the Tribunal noted (at paras. 29-30) that in previous Tribunal decisions,

[G]enerally the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury.

In my view, that exception applies here.

[34] The Tribunal barred all Ms. Morningstar’s claims, including constructive dismissal. The Tribunal found (at para. 34) that the various remedies sought all flowed from the alleged workplace harassment, the employer’s response and the worker’s resulting mental stress. The Tribunal then went on to find as follows: “As such, I find that the foundational facts for the cause of action are inextricably linked to workplace harassment, an injury that is compensated under the WSIA, and thus the [worker’s] right to sue the [employer] is removed in these circumstances.”

[35] At para. 61, the Tribunal concluded its analysis as follows:

In short, … I find that the [worker’s] action against the [employer] reflects a claim for personal injury arising from a work accident consisting of alleged workplace harassment and the employer’s alleged failure to address it. As such, her claim falls within the jurisdiction of the WSIA and thus her right to bring a civil action against the employer is barred by statute in these circumstances.

[36] The Tribunal’s decision was reconsidered by a different adjudicator at Ms. Morningstar’s request. Upon reconsideration, the Tribunal confirmed the first decision, finding that the first adjudicator correctly applied previous Tribunal jurisprudence indicating that the WSIA does not remove the right to bring a civil action for constructive dismissal except in exceptional circumstances: see Decision No. 1227/19R, 2020 ONWSIAT 1151, at para. 55. The Tribunal found (at para. 53) that “the alleged wrongful acts [of the employer and co-workers] constitute the accident … that caused the injury,” being mental distress. In these circumstances, the Tribunal found (at para. 55) that the first adjudicator was correct to conclude that an exception applied to bar the constructive dismissal claim since “the facts are inextricably linked to the compensable accident”, also finding that “the manner in which the cause of action is framed is not determinative.”

(b) Divisional Court decision

[37] Upon judicial review, the Divisional Court quashed the Tribunal’s decisions as unreasonable to the extent that they barred Ms. Morningstar’s claim for constructive dismissal and related claims for aggravated, moral and punitive damages: Morningstar, at para. 125. Ms. Morningstar did not dispute the barring of her other claims, including for the tort of harassment. The court allowed the permitted claims to proceed, rather than remitting the matter to the Tribunal for reconsideration, finding that fairness dictated that the civil action proceed without further delay: Morningstar, at paras. 126-128.

[38] In its reasons, the court noted the following:

i. When considered in the context of the “historic trade-off” inherent in the WSIA, “it is reasonable to conclude that the lawsuits that are statute-barred are those for torts causing work-related injuries”: at para. 49.

ii. When properly conducted, the Tribunal’s s. 31 assessment “reasonably begins from a position of restraint on the part of the [Tribunal] when an application is made to bar a claim that is not in tort”: at para. 53.

iii. A failure to “at least consider the type of action and the nature of compensation offered and not offered under the [WSIA] in a s. 31 analysis would appear to involve an unreasonable oversight. This is especially so in the case of damages for constructive dismissal”, which is not compensable under the WSIA: at para. 54; see also Nasser v. ABC Group Inc., [2008] O.J. No. 453 (Div. Ct.), at para. 6, cited in Morningstar, at para. 55.

iv. It is “only when the damages claimed in the civil action result from the existence of a work-related personal injury that the right to bring a civil action is barred”: at para. 54. That conclusion is consistent with Nasser, at para. 7 (cited in Morningstar, at para. 55), where the court permitted the worker’s action for constructive dismissal to proceed, noting that “the plaintiff's claim here is clearly one of damages for breach of contract. The plaintiff does not seek relief for personal injury damages.”

v. Given the policy underlying the WSIA (including the “historic trade-off”), the Tribunal “generally does not bar actions for wrongful dismissal pursuant to its mandate in s. 31”: at para. 56. It is only in the “exceptional case” that a wrongful dismissal claim will be statute-barred where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury: at para. 57.

vi. When determining whether an action is statute-barred, the Tribunal must take care to ensure that the worker is not attempting to “bring civil suit for workplace injury or to bypass the [WSIA’s] limits on benefits by disguising their claims for benefits as other forms of action. The purpose of … s. 31 of the [WSIA] is to bar tort actions and also to root out tort claims that are disguised as other types of actions”: at para. 58.

vii. In previous Tribunal decisions in which non-tort claims (including wrongful or constructive dismissal) are barred, “there is often an indication that the plaintiff worker is attempting to improperly disguise a tort action as another kind of action so as to escape the limits of the regime established by the Act. The origin of the injury is not decisive, rather, it is the bona fides of the civil action”. A claim for wrongful dismissal should barred only in “cases in which the connection between the injury and the claim for damages for wrongful dismissal is so strong that a panel would perceive that the substance of the wrongful dismissal action was merely a claim for workers' compensation benefits in disguise”: at para. 59, quoting Decision No. 670/97, [1998] O.W.S.I.A.T.D. No. 570, at para. 27.

viii. Conversely, wrongful dismissal actions are not statute-barred “where the actions represent genuine causes of action that do not trench on the tort claims that lie behind the policy of the [WSIA] …. In such cases, the claims that are permitted to proceed are considered incidental to the personal injury that occurred: at para. 65. The connection between the two may be considered incidental even where “the personal injury and the allegation of wrongful dismissal share some factual basis”: at para. 68.

[39] Applying the above principles, the Divisional Court determined that in the decisions under review, the Tribunal’s reasoning and conclusions were unreasonable. At para. 81, the court observed that in both decisions, the Tribunal found that the workplace injury and the constructive dismissal action were “inextricably linked” on the basis that “the facts set out by the applicant [in the statement of claim] were ‘inextricably linked’ to the workplace injury” (emphasis in the original). At para. 82, the court held that in doing so, the Tribunal ignored the policy behind and wording of the WSIA, disregarded essential facts in the worker’s statement of claim, relied on inappropriate authorities and failed to consider relevant authorities.

[40] At para. 83, the court also indicated that the Tribunal misapplied the “inextricably linked” test by focusing on “the linkage of the facts to the accident in question, rather than on the bona fides of a cause of action for constructive dismissal or on the availability of benefits under the [WSIA]”. The court also stated that the Tribunal “unreasonably did not resort to the tools at hand to extricate an apparently viable claim for constructive dismissal. The linkage is only inextricable if the tools that are available to extricate it are unreasonably ignored.”

[41] At para. 119, the court indicated that the same analysis applies with respect to the worker’s claims for moral, aggravated or punitive dames arising from the worker’s constructive dismissal claim, holding that “[u]nless that claim is shown to be a disguised claim in tort, the nature of the damages sought, which are not available under the Act, should have guided the WSIAT to consider the bona fides of the applicant's claim for constructive dismissal, and not simply factual linkage. Not to have done so is unreasonable.”

[42] At para. 124, the court concluded its analysis as follows:

The applicant's claim for constructive dismissal deserves the opportunity to be tested in the courts. There is no indication that the claim is a colourable attempt by the applicant to skirt the historic trade-off; the claim for constructive dismissal does not appear to be a tort claim in the guise of an employment or contract dispute. The damages sought by the applicant are not benefits available under the Act and represent headings of damage for constructive or wrongful dismissal that have been recognized in Canadian law.

(c) Analysis and conclusion

[43] In their counsel’s oral submissions, the applicants submit that applying the Divisional Court’s analysis in Morningstar, the Tribunal’s decision barring the applicants’ civil action in its entirety is unreasonable and should be quashed to the extent that it prevents Ms. Chen from pursuing her claim for damages for constructive dismissal and related claims for punitive, aggravated and bad faith damages. The applicants do not dispute that the statutory bar would continue to apply to the tort claims related to the alleged assault and battery of Ms. Chen.

[44] The applicants submit that the Tribunal’s reasons in the decision under review suffer from the same type of deficiencies that the court identified in Morningstar. In its decision in this case, at para. 70, the Tribunal’s conclusion that the injury and the action were “inextricably linked” was based on its finding that “the entire factual foundation for the Applicants’ cause of action stems from the workplace accident of September 26, 2011”. The applicants say that in doing so, the Tribunal made the same error identified in Morningstar of focusing on “the linkage of the facts to the accident in question, rather than on the bona fides of a cause of action for constructive dismissal or on the availability of benefits under the [WSIA]”: Morningstar, at para. 83. The decision under review made no reference to the fact that damages for constructive dismissal are not compensable as workers’ compensation benefits under the WSIA, nor did the Tribunal analyze whether the claim is “a colourable attempt … to skirt the historic trade-off” by advancing “a tort claim in the guise of an employment or contract dispute”: Morningstar, at para. 124. In fact, the decision contained virtually no reference these important issues. In these circumstances, the applicants say that their civil action based on constructive dismissal and related claims should be allowed to proceed, or in the alternative, the matter should be remitted to the Tribunal for reconsideration.

[45] I disagree. While there is merit to many of the applicants’ criticisms of the decision under review, in my view, they do not rise to the level of justifying quashing the decision.

[46] As noted in the applicants’ oral submissions, the decision under review does not refer to the fact that damages for wrongful or constructive dismissal are not compensable under the WSIA as workers’ compensation benefits. As well, the decision does not include explicit analysis of the bona fides of Ms. Chen’s constructive dismissal claim to determine whether if it is a disguised tort claim, taking into account the policy underlying the WSIA. Based on the court’s reasoning in Morningstar, those omissions, although not necessarily determinative, may justify a greater degree of caution and scrutiny upon judicial review.

[47] That being said, it is necessary to keep in mind that the standard of review is reasonableness. Upon judicial review, the Tribunal’s reasons are not assessed against a standard of perfection: see Vavilov, at para. 91. The Tribunal’s decision is entitled to great deference by the reviewing court: see Radzevicius Estate v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2020 ONSC 319 (Div. Ct.), at para. 16.

[48] As previously noted, in the decision under review, the Tribunal refers to other Tribunal jurisprudence, correctly stating that on a s. 31 application, the Tribunal generally does not bar actions for wrongful dismissal except in an “exceptional case” where “the circumstances of the wrongful dismissal claim are inextricably linked to the workplace injury”: at para. 66. The test is articulated in the same words in the Morningstar Tribunal decisions, which the Divisional Court held to be a correct statement of the test: Morningstar, at para. 57.

[49] According to the applicants, the Tribunal in this case went astray in its facts-focused formulation of the test to determine whether the circumstances of the constructive dismissal claim and the workplace injury were inextricably linked: at para. 70. However, as respondents’ counsel noted in their submissions, the facts and underlying circumstances relating to the decision under review are very different from those in Morningstar.[^1]

[50] In both cases, the Tribunal reviewed and considered the claims set out in the worker’s statement of claim. However, unlike in Morningstar, the Tribunal’s findings relating to the matters in dispute between the applicants and the Teva parties were not based on the assumed truth of the facts pleaded. The Tribunal’s findings were based on the evidence of Ms. Chen and four Teva witnesses (including Mr. Cako), who testified over a three-day period, as well as documentary evidence. The pivotal finding the Tribunal made was that the disputed incident was an accident and not an intentional assault. That finding was key to the Tribunal’s conclusion that Ms. Chen’s was injured in the course of her employment, an issue that was not in dispute before the Tribunal in Morningstar: see Decision No. 1227/19, at para. 27.

[51] In contrast, in the decision under review, the applicants’ Amended Fresh as Amended Statement of Claim dated September 24, 2013 (which was before the Tribunal) pleads that Mr. Cako “violently” pulled down the sash on Ms. Chen’s arm in an intentional assault, conduct described as “harsh, vindictive, malicious and reprehensible.” The Tribunal’s conclusions on this issue (which I consider to be reasonable) were not consistent with the facts as pleaded in the applicants’ statement of claim.

[52] Another point of distinction between the two matters is the fact that the alleged wrongful conduct in Morningstar (being a campaign of harassment and bullying involving multiple co-workers and managers) occurred over an extended period of time, which the employer failed to address, resulting in a poisoned work environment. The campaign of harassment (and management’s involvement in it) was confirmed in an independent investigation that was ordered after the employer’s internal investigation found that no harassment had occurred. The independent investigation report was initially withheld from Ms. Morningstar before being provided to her in redacted form.

[53] In contrast, as pleaded in the applicants’ statement of claim, Ms. Chen’s injury (including any resulting mental stress) arose from a single instance of alleged workplace violence[^2] and Teva’s alleged failure to properly investigate the incident and protect Ms. Chen from future harm. As pleaded, Ms. Chen’s unilateral constructive dismissal occurred on or about the same date as the alleged violent act against her,[^3] rather being based on subsequent wrongful conduct by Teva of the nature alleged in Morningstar. In any case, the Tribunal found (in my view reasonably) that the alleged violent act had not occurred. In reaching that conclusion, the Tribunal referred to Teva’s “extensive investigation” of the disputed incident and adopted the investigation’s findings as “largely represent[ing] the material facts surrounding the incident”, with one exception noted previously: see Decision 3144/18, at paras. 53-54. That finding does not accord with the applicants’ allegations as to the sufficiency of Teva’s investigation. As well, while not referred to in the Tribunal’s decision, there was evidence before the Tribunal that notwithstanding the results of the investigation, Teva offered to accommodate Ms. Chen’s concerns by assigning her to a different location of the laboratory away from Mr. Cako.

[54] In all the circumstances, I consider it reasonable to conclude that the matter under review is not one of those cases where the constructive dismissal and related claims are incidental to the workplace injury that occurred. Rather, it is reasonable to conclude that the connection between the workplace injury and the employment claims is so strong that it should be considered a disguised tort claim barred from proceedings by the WSIA: see Morningstar, at paras. 59 and 65. Accordingly, I see no grounds for concluding the Tribunal was unreasonable in concluding that the applicants’ civil action should be barred in its entirety.

VII. Procedural fairness

[55] Did the Tribunal comply with its duty of procedural fairness in the circumstances of this case?

[56] In their factum, the applicants raise a number of fairness issues relating to the Tribunal’s adjudication of the s. 31 application. The applicants argue that they have been denied procedural fairness, justifying setting aside the Tribunal’s decision.

[57] I disagree. I see no merit in their position. The principal fairness issues the applicants raise are addressed below.

[58] In doing so, I have confined my comments to procedural fairness issues relating to the Tribunal’s adjudication of the application. The applicants also raise general fairness issues arising from the conduct of Teva and Mr. Cako relating to alleged workplace violence and the workplace investigation. To the extent they are relevant, those issues relate to the merits review of the Tribunal’s decision, rather than the procedural fairness of the application process.

(a) Adjournments

[59] The applicants allege that the Tribunal unfairly allowed the respondents two adjournments of scheduled hearing dates in violation of the Tribunal’s practice directions, causing undue delay. In fact, the record indicates that the parties were twice offered proposed hearing dates, which Teva’s counsel indicated did not work for them. The Tribunal then requested that counsel provide their available dates in writing, after which the Tribunal set the hearing date without further consultation. Contrary to the applicants’ submission, there were no adjournments of scheduled hearing dates.

(b) Interpreters

[60] The applicants allege the Tribunal unfairly failed to provide two Mandarin interpreters, one for each of Ms. Chen and Mr. Xie, for the application hearing. During the hearing, Mr. Xie was present in the hearing room with the Vice-Chair. Ms. Chen participated by video conference from another hearing room, at her request. A Mandarin interpreter was with Ms. Chen in the other hearing room to assist her as required. Part way through the first day of the hearing, the interpreter raised the issue of whether a second interpreter should be provided. The Vice-Chair noted that from the hearing to that point, it appeared that Mr. Xie had a general grasp of English but asked Mr. Xie for his position as to whether a second interpreter should be arranged, noting a second interpreter might not be available quickly. Mr. Xie confirmed he was able to continue in English without a second interpreter. Later the same day, the Vice-Chair revisited the issue, providing Mr. Xie with the opportunity to consult with Ms. Chen. After doing so, Mr. Xie again confirmed that a second interpreter was not required. In these circumstances, I see no unfairness to the applicants resulting from the absence of a second Mandarin interpreter.

(c) Improper recording of the hearing

[61] The applicants allege that the Vice-Chair improperly permitted an articling student with Teva’s counsel to make an audio recording of the hearing. They also challenge the accuracy of the hearing record, suggesting that it was tampered with. There is no evidence to support these allegations. The Tribunal recorded the hearing in according with its usual procedures and transcripts were prepared for use on the judicial review application. I also note that alleged inaccuracies in the hearing transcripts were addressed in the case management process for this judicial review application, as set out in the endorsements of Corbett J. dated October 16, 2020 (reported at 2020 ONSC 6287) and January 22, 2021 (reported at 2021 ONSC 567).

(d) Failure to investigate workplace violence/video surveillance

[62] The applicants submit that despite their request to do so, the Tribunal failed to investigate workplace violence against Ms. Chen, referring to the disputed incident of September 26, 2011 and an alleged verbal assault by Teva’s human resources manager on September 30, 2011. As part of that submission, the applicants allege that the Tribunal failed to consider video surveillance footage of the alleged violence, which Ms. Chen understood to exist.

[63] I see no merit to the applicants’ position. In a s. 31 application, the Tribunal’s statutory mandate is to consider whether the worker’s right to sue has been extinguished. It does so based on the evidence properly before the Tribunal, as presented by the parties. While the Tribunal may use its procedural powers to seek additional evidence it may require, the Tribunal is mandated to adjudicate, not investigate. When doing so, the duty of procedural fairness requires the Tribunal to ensure a fair proceeding for all parties to the application. However, that duty does not require the Tribunal to assume the role of an investigator with respect to the merits of the application, as the applicants suggest.

[64] In any case, I note that in the Tribunal’s decision, at paras. 49-50, the Vice-Chair considered the evidence from the Teva witnesses relating to the existence of video surveillance footage of the disputed incident and found that no such footage existed. I see nothing to suggest that the Vice-Chair was unreasonable in making that finding.

VIII. Disposition

[65] For the above reasons, the application is dismissed.

[66] Since the respondents are not seeking costs, no costs are being ordered.

___________________________ R. A. Lococo J.

I agree

___________________________ McWatt A.C.J.S.C.J.

I agree

Sachs J.

Date of Release: November 25, 2021

Insurance Appeals Tribunal), 2021 ONSC 7625

DIVISIONAL COURT FILE NO.: DC-21-094-JR DATE: 20211125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C.J,, Sachs and Lococo JJ.

BETWEEN:

XIAOLI CHEN (CATHY) and YEXING XIE

Applicants

– and –

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, TEVA CANADA LTD. and HAKIM CAKO

Respondents

REASONS FOR JUDGMENT

R. A. Lococo J.

Date of Release: November 25, 2021

[^1]: In the judicial review application, Tribunal’s counsel took no position with respect to the merits review of the Tribunal decision in this case.

[^2]: Paragraph 31 of the applicants’ statement of claim also refers to a second instance one month earlier (not involving alleged violence), when Mr. Cako’s was alleged to have interfered with Ms. Chen’s work by pushing the stop button on equipment she was using. The Tribunal did not refer to that incident in the decision under review.

[^3]: Paragraph 14 of the applicants’ statement of claim pleads that her employment was “unilaterally terminated on or about September 26, 2011 following a violent incident ….” Paragraphs 1(ii) seeks a declaration that she was “constructively dismissed on or after September 26, 2011”.