Court File and Parties

CITATION: Ratman v. Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 3923

DIVISIONAL COURT FILE NO.: 282/18

DATE: 20220705

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ZBIGNIEW “ZIGGY” RATMAN, Applicant

AND:

WORKPLACE safety and INSURANCE APPEALS TRIBUNAL, Respondent

BEFORE: Swinton, Trimble and Nishikawa JJ.

COUNSEL: Daniel R. Libman, for the Applicant Chris G. Paliare and Kate Shao, for the Respondent

HEARD at Toronto (by videoconference): June 29, 2022

Endorsement

[1] The applicant brought this application for judicial review on May 10, 2018 to challenge five decisions of the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) – a decision dated January 7, 2008 and reconsideration decisions relating to it dated August 13, 2008 and March 29, 2011, plus a decision dated October 8, 2009 and a reconsideration decision relating to it dated April 5, 2018.

[2] The Tribunal asked this Court to dismiss the application for judicial review of the first four decisions on the basis of delay. After hearing submissions, the Court informed the parties that it would do, so with reasons to follow.

[3] A court on judicial review has the discretion to dismiss an application for delay. The Court considers the length of the delay, the explanation for the delay, and prejudice (Ransom v. Ontario, 2010 ONSC 3156 (Div. Ct.) at para. 5).

[4] There has been an inordinate delay in bringing this application for judicial review. Indeed, counsel for the applicant does not deny the delay has been lengthy.

[5] The applicant argues, however, that he has a reasonable explanation for the delay, because his previous legal counsel did not bring an application in a timely manner. However, in April of 2011, the applicant had been advised by two prior legal counsel of the need to proceed promptly in bringing such an application. While the applicant had expressed concern about the lack of progress by a third counsel, he made no complaints to the Law Society of Ontario or to Legal Aid. In our view, the explanation does not excuse the lengthy delay.

[6] This is a case where prejudice to the respondent can be presumed because of the length of delay. As Sachs J. stated in Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108 (Div. Ct.) (upheld on a motion to set aside in 2021 ONSC 7720), there is an institutional interest in finality of decisions (at para. 45).

[7] However, there is also actual prejudice in this case because records of the Tribunal have been destroyed in accordance with their record keeping policy.

[8] Considering all the factors, we refused to judicially review the 2008, 2009 and 2011 decisions because of the lengthy delay.

[9] The remaining decision under review is the Tribunal’s refusal in April 2018 to reconsider its 2009 decision. The applicant argues that the reconsideration decision is unreasonable, because the reasons are inadequate and the Tribunal dealt only with the issue of delay and failed to consider other issues, such as whether there had been a significant error in the earlier decision.

[10] The standard of review of this decision is reasonableness.

[11] Pursuant to s. 129 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, the Tribunal has the discretion to reconsider a decision “if it considers it advisable to do so.” Pursuant to s. 131(1) of the Act, the Tribunal may determine its own practice and procedure. It has developed a Practice Direction on reconsiderations. Section 3.2 emphasizes the importance of finality in the decision-making process and then states that “as a general practice, it is not advisable to reconsider a decision after more than six months has passed since the decision was made”. The section also states that a delay of more than six months in making a request for reconsideration is a factor that can be weighed in considering whether it is advisable to reconsider the decision.

[12] In its reasons, the Tribunal noted that the request for reconsideration was made more than seven years after the original decision was made, and no explanation for the delay was provided. The Tribunal referred to the applicable statutory provisions and the Practice Direction. Given the length of the delay and lack of explanation for it, the Tribunal concluded that it was not advisable to reconsider the 2009 decision.

[13] Although the reasons are brief, they are adequate to explain and justify the decision. The Tribunal has a discretion whether to grant reconsideration. Here, it reasonably considered the significant delay in requesting the reconsideration and acted in accordance with the Practice Direction, concluding that it was not advisable to reconsider the 2009 decision. The applicant has not shown that the reconsideration decision was unreasonable, either in its reasoning process or outcome.

[14] Accordingly, the application for judicial review is dismissed. The parties have agreed that there will be no costs.

Swinton J.

Trimble J.

Nishikawa J.

Date: July 5, 2022