Court File and Parties

CITATION: Grisales v. Workplace Safety and Insurance Board, 2023 ONSC 3846

DIVISIONAL COURT FILE NO.: 693/22

DATE: 2023/06/29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Clara Grisales and Ontario Network of Injured Worker Groups, Applicants

AND:

Workplace Safety and insurance board, Respondent

BEFORE: Sachs, Coats and Leiper JJ.

COUNSEL: Emily McBain-Ashfield and Amanda Therrien, for the Applicants

Jean-Denis Belec and Eric Kupka, for the Respondent

HEARD at Toronto by videoconference: June 26, 2023

Endorsement

H. Sachs J. (orally)

[1] The Applicant, Ms. Grisales, was injured while working for a commercial bakery. On May 4, 2022, The Workplace Safety Insurance Appeal Tribunal (“WSIAT”) found that she was entitled to benefits, including loss of earning benefits. On September 26, 2022, the Workplace Safety and Insurance Board (“WSIB” or the “Board”) issued a decision implementing the WSIAT decision and awarding Ms. Grisales a lump sum for loss of earning payments for the period from July 10, 2009 to September 12, 2022. This sum included an amount for an increase due to indexing. The amount due to indexing was calculated according to a WSIB policy.

[2] On November 22, 2022, Ms. Grisales submitted an Intent to Object to the aspect of the September 22, 2022 decision that dealt with the indexation of benefits from January 1, 2022. The WSIB replied saying that that the policy and practice of calculating the indexation of benefits was not subject to appeal because they are not individual adjudicative decisions. On November 25, 2022, the WSIB formally notified Ms. Grisales that it did not view indexation as an objectionable issue.

[3] Ms. Grisales and the Ontario Network of Injured Workers Groups bring this application for judicial review arguing that the WSIB’s decision to dismiss Ms. Grisales’ intention to object and maintain its policy regarding indexing was unreasonable. The essence of the argument around the unreasonableness of the WSIB indexing policy is that it runs contrary to the express wording of the applicable legislation regarding indexing.

[4] This is a question that should be dealt with by the WSIAT. The WSIB decision that had the prevented Ms. Grisales’ objection from proceeding to a hearing before the WSIAT was unreasonable. The WSIB justified its decision on the basis that the issue was a systemic one that affected how it treated all workers, not just Ms. Grisales. Therefore, it was a matter that should not proceed before the WSIAT as the WSIAT is a tribunal designed to deal with individual disputes.

[5] The problem with this submission is that it ignores the provisions of the Workplace Safety and Insurance Act, 1997, S.O.1997, C.16, Sched A (the “Act”) and particularly s. 126 thereof. Section 126(1) states that if there is a Board policy with respect to the subject-matter of an appeal, the WSIAT shall apply it when making its decision. Section 126(4) provides that if the WSIAT concludes that a Board policy is inconsistent with, or is not authorized by the Act, the WSIAT shall refer the policy to the Board for its review. In doing so, the WSIAT is to give its reasons for its concern (s. 126(5)). Pursuant to ss. 126(7) and (8), the Board is to give the parties an opportunity to make written submissions on the issue and within 60 days it is to issue a written direction with reasons determining the issue.

[6] The process set out by the legislature in s. 126 of the Act has been entirely disregarded by the WSIB. We received no compelling reason as to why. Section 126 expressly contemplates that the WSIAT will review policy. It is an important principle of administrative law that, absent exceptional circumstances, the parties are to exhaust their administrative remedies before coming to the court by way of judicial review.

[7] In view of this, I find that the WSIB decision not to allow Ms. Grisales’ notice of objection to proceed was unreasonable. Consequently it must be set aside. I further direct that this matter is to proceed to appeal in accordance with the provisions of the Act. Pursuant to the agreement of the parties, there will no order as to costs in relation to today’s attendance.

Sachs J.

I agree _______________________________

Coats J.

I agree _______________________________

Leiper J.

Date: June 29, 2023