CITATION: City of Toronto v WSIAT and Beebeejaun, 2023 ONSC 3875
DIVISIONAL COURT FILE NO.: 582/21
DATE: 20230629
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Coats and Leiper JJ.
BETWEEN:
CITY OF TORONTO
Robert Fredericks, Stephanie Moutsatsos and Randy Ramoodit, lawyers for the Applicant
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL AND AYOOB BEEBEEJAUN
Respondents
Chris G. Paliare and Mannu Chowdhury, lawyers for the Respondent, Workplace Safety and Insurance Appeals Tribunal
Christine Davies, lawyers for the Respondent, Ayoob Beebeejaun
HEARD at Toronto: June 26, 2023
Leiper, J.
Introduction
[1] The Applicant, City of Toronto, seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal allowing the Respondent, Mr. Beebeejaun’s appeal and approving payment of loss of earnings benefits for a workplace injury.
[2] Mr. Beebeejaun was employed by the City of Toronto as a firefighter. He was terminated for cause on November 7, 2017, effective on November 14, 2017. In January of 2018, he made a claim to the Workplace Safety and Insurance Board arising from his diagnosis that he suffers from post-traumatic stress disorder (PTSD) as a result of his duties as a firefighter.
[3] The Board found that Mr. Beebeejaun’s PTSD resulted from his duties as a firefighter and approved his claim for health benefits but not for his future loss of earnings. The Board concluded that the loss of earnings was a result of his termination, and not from the diagnosis of PTSD.
[4] An Appeals Resolution Officer (ARO) conducted a subsequent review and rejected medical evidence that the PTSD may have played a role in some of the conduct that led to Mr. Beebeejaun’s termination. The ARO confirmed the Board's decision to deny him benefits for his future loss of earnings. It concluded that the clinical records showed a history of various stressors, but that his loss of earnings were not a result of workplace PTSD.
[5] Mr. Beebeejaun appealed to the Tribunal. The Tribunal allowed his appeal at first instance and upheld this result after an in-writing reconsideration hearing.
[6] The issue on this application for judicial review is whether the Tribunal decisions were reasonable and whether the Tribunal reasonably applied s. 43 of the Workplace Safety and Insurance Act, 1997 S.O. 1997, c. 16 (the “Act” or “WSIA”) and its evolving jurisprudence on the question of loss of earnings in the context of a termination of employment which coincides with the discovery of a compensable workplace injury.
Standard of Review
[7] The parties agree that the standard of review that applies is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[8] The reasonableness standard of review requires a reviewing court to respect the distinct role of administrative decision makers. Reasonableness is not a standard of perfection, and thus, errors that are peripheral or superficial will not necessarily mean that a decision is unreasonable: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 82.
[9] Unreasonableness is more likely to be found where the decisionmaker has failed to address key arguments raised by the parties, applied circular reasoning, failed to justify a departure from precedent, or employed statutory interpretation that is inconsistent with the text and context of the legislation: Vavilov, at para. 106.
[10] Overall, the reasons for decision will be measured against the important elements of justification, intelligibility, and transparency: Vavilov, at para. 86.
[11] Tribunals should strive to treat like cases alike and explain a departure from established decisions in like circumstances: Vavilov at paras. 129 and 131. However, administrative decision makers do not need to be unanimous in their interpretations. “[T]he mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law.”: Vavilov, at para. 129.
[12] Tribunals are bound by principles of statutory interpretation, that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:” Rizzo & Rizzo Shoes (Re), [1998] 1 S.C.R. 27.
The Issues on Judicial Review
[13] The City of Toronto submits that the decisions of the Tribunal are unreasonable and should be set aside. There are three issues that form the basis for this submission which the City articulates as follows:
a. Did the Tribunal unreasonably reject a line of cases which focuses on employer intention in interpreting s. 43(1) of the WSIA?
b. Alternatively, if the Tribunal’s choice to follow the “worker conduct” line of cases was reasonable, did the Tribunal misapply this analytic approach?
c. In reaching its conclusion to grant Mr. Beebeejaun benefits, did the Tribunal misapprehend or ignore relevant medical evidence?
Analysis of the Issues
a. Did the Tribunal unreasonably reject a line of cases which focuses on employer intention in interpreting s. 43(1) of the WSIA?
[14] At the first level of appeal, the Tribunal in its “First Decision” noted two different approaches in prior decisions involving the termination of injured workers. In some cases, known as the “employer intention” line of cases, the Board looked at the reasons for the termination. If the termination was for reasons related to the compensable injury, the worker would be entitled to benefits. If the firing was not related to the injury, then the worker would not be entitled to benefits.
[15] The employee intention decisions date back to 2001 (see Decision No. 1230/01, 2001 ONWSIAT 1636, at paras. 34-35, 40), in a case where a worker who suffered a back injury and was on modified duties was subsequently terminated after an altercation with a co-worker. The Board denied his claim because the reason for his firing had nothing to do with his injury. This decision, and several decisions that followed, defined the key question as to whether the injury played some role in the termination of the worker.[^1]
[16] Here, although there was evidence that some of the conduct that led to Mr. Beebeejaun being fired was related to PTSD, the Board did not accept this evidence. The City submits that the Tribunal ought to have followed the employer intention line of cases and denied benefits based on that analysis and the evidence, including this finding.
[17] On appeal, the Tribunal considered and preferred the approach taken in the second line of cases, known as the “worker conduct” cases. This analysis focusses instead on whether the compensable injury made a “significant contribution” to the worker’s post-termination wage loss, unless an “intervening event” breaks the chain of causation between the injury and the loss of earnings.
[18] The competing line of cases, referred to by the Tribunal as “worker conduct” or as the Respondent Mr. Beebeejaun characterizes it, the “significant contribution” cases, have been applied more recently since Decision No. 690/07, 2009 ONWSIAT 2087.
[19] In this line of cases, discussed in detail in the Reconsideration decision of the Tribunal, the Tribunal examines the conduct of the worker before the termination. As a rule, workers will receive loss of earnings, or “LOE” benefits to compensate for injury-related wage loss following their terminations if they did not bring about the loss of their jobs by acting unreasonably. However, where a job was lost because the worker acted unreasonably, the wage loss is found to be related to the worker’s own actions and not to the injury and no LOE benefits are paid.
[20] This line of cases looks at what “acting unreasonably” means within the context of the legislative scheme: the relationship between employers and injured workers and those parties’ responsibilities within the scheme. Employers are to accommodate injured workers to the extent possible, and workers are to cooperate with those attempts. If the conduct of the worker leads to the loss of wages, either by failing to act reasonably to mitigate their post-injury wage loss, or by acting in a way that is inimical to their ability to perform their work then this is the type of conduct that will constitute an intervening event that will break the chain of causation, such that the loss of wages will not be “as a result of the injury.”
[21] The Tribunal’s Reconsideration Decision concluded that this interpretation seeks to carry out the “clear intention” in s. 43 to compensate employees for wage loss “that results from an injury.” The consensus at the Tribunal has been to focus on this statutory intention and to allow claims for benefits for injured workers who may have been downsized, terminated or laid off because of the existence of a compensable injury, related to their employment and the subsequent disadvantage those employees have in seeking work from future employers.
[22] The Tribunal considered prior Decision 904/14, 2014 ONWSIAT 1597, in detail and followed the worker conduct test there which it described as:
[A] determination of whether, prior to the worker’s termination by the employer, the worker engaged in conduct that:
brought about his or her termination; and
was a significant departure from the general duty that exists to reduce injury- related wage loss such that it is unreasonable for the worker to expect workers’ compensation benefits for the wage loss that resulted from the worker’s own misconduct.
[23] Here, the reference to “the worker’s own misconduct” by the Tribunal in Decision 904/14 and as applied by the Tribunal in the Reconsideration decision is specific to the workers’ compensation scheme. It does not import broader principles of misconduct or fault that may lead to termination for cause.
[24] As the Tribunal put it in Decision 904/14, at para. 62:
The focus on the nature of the worker’s conduct prior to termination does not require the application of labour relations concepts or wrongful dismissal criteria. There is no requirement to import legal criteria from the courts or other tribunals that the Tribunal (or the Board) does not have expertise in. The standard is instead one of reasonableness in the workers’ compensation context.
[25] The Reconsideration decision explained the rationale for this line of cases and interpreted
s. 43: to compensate injured workers based on the question of “whether the worker’s compensable injury continues to make a significant contribution to his/her loss of earnings after the termination of employment.” The reasons refer to Decision 904/14 and its discussion of the two trends in the Tribunal jurisprudence. The reasons accurately describe the rationale for the worker conduct approach and the more recent consensus for using this approach.
[26] Two more recent cases that have followed the employer intention approach were considered by the Tribunal in the Reconsideration decision: Decision Nos. 1261/18, 2018 ONWSIAT 2236 and 717/19, 2020 ONWSIAT 1250. The Tribunal noted that these two decisions did not discuss the worker conduct line of cases, nor provide any reasons for rejecting that approach.
[27] The Tribunal illustrated the problem of following the employer intention line of cases with the hypothetical example of a skilled mechanic suffering from an injury, and a corresponding decision by his employer to create a return-to-work program that involves managing inventory at his previous wages. If that job is later terminated, for reasons unrelated to the compensable injury, this worker is at a disadvantage from obtaining work in his specialized field, thus he will experience a loss of income resulting from the injury. This outcome is contrary to the scheme and purpose of the Act and to s. 43, which aims to compensate for loss of earnings “as a result of” a workplace injury.
[28] While not pursued in oral argument, in its factum, the City submitted that the Tribunal unreasonably failed to follow the “worker conduct” line of cases which it argues is more in line with a plain language interpretation of s. 43 of the Act and in particular the interpretation of the phrase, “a loss of earnings as a result of the injury”. The City submits that there must be a causal role between the loss of earnings and the injury. This approach looks back at the past earnings and seeks to assign responsibility for the termination of those earnings. Thus, if the injury did not “cause” the inability to continue to earn in the present employment, s. 43 would not apply and LOE would not be available.
[29] However, the City also notes that under the employment intention line of cases, in some circumstances where the employee is not seen to be responsible for the termination of employment, (for example due to a lay-off which is outside the employee’s control) LOE for loss of future wages “as a result of the injury” are available.
[30] Under the worker conduct/termination line of cases, followed here by both Tribunal decisions, the focus is on loss of earnings in the future “as a result of” the workplace injury. A plain reading of s. 43 does not prevent this approach, particularly given the scheme of the Act. It is a piece of remedial legislation designed to compensate workers for workplace injuries while at the same time promoting re-employment, with either the accident employer, or where that is not
possible, in the general labour market: Decision No. 1402/03R, 2005 ONWSIAT 1864, at para. 28;
Decision No. 180/08R, 2008 ONWSIAT 1440, at paras. 19-21.
[31] Both decisions below demonstrated an awareness of the competing lines of authority and chose the current prevailing view. The Reconsideration Decision recognized and discussed these authorities and provided transparent, intelligible reasons justifying its choice to follow the worker conduct cases. The reasons explain why this approach carries out the purposes of the Act, why it is consistent with the principles of statutory interpretation and the wording in s. 43 and used a hypothetical example to demonstrate how this approach prevents unfairness to an employee who has suffered a workplace injury.
[32] While the First Decision did not perform the analysis to this level of detail, it demonstrated an awareness of the competing jurisprudence, made a choice, and can be said to have reasonably adopted that choice, particularly given the content of the Reconsideration Decision.
[33] In doing so, I conclude that the Tribunal acted reasonably. I would not give effect to the City’s submission that the Tribunal drew an unreasonable conclusion. I turn next to how the Tribunal applied the worker conduct analysis and whether it did so reasonably.
b. Alternatively, if the Tribunal’s choice to follow the “worker conduct” line of cases was reasonable, did the Tribunal misapply this analytic approach?
[34] The City of Toronto submits that the Tribunal unreasonably failed to apply the evidence before it to the test it chose to apply. That is, it oversimplified the analysis and failed to consider the reason for Mr. Beebeejaun losing his position as a firefighter. He was found to have improperly worn his uniform on several occasions and to have improperly taken sick days, conduct that dated back several years. The City argues that the First Decision failed to consider this history of misconduct and the much later diagnosis of PTSD. It also submits that the First Decision did not consider the history of physicals which confirmed that Mr. Beebeejaun could perform his duties as a firefighter and was working in 2017, the year of his dismissal. In doing so, the City submits that although the Tribunal chose to follow the worker conduct line of cases, it did not follow the test in that line of cases and focused only on the PTSD diagnosis without considering the entire constellation of facts surrounding Mr. Beebeejaun’s dismissal and the medical evidence.
[35] The City of Toronto submits that “but for his termination” and not due to the PTSD, Mr. Beebeejaun would have continued to work as a firefighter.
[36] I would not give effect to this submission. In the First Decision, the Tribunal considered the conduct of Mr. Beebeejaun relative to the scheme of the Act, as discussed above. It considered the available medical evidence, including the results of the psychological assessments of Dr. Rockman, Dr. Yacower and Dr. Farrow. The Tribunal concluded based on its review of all of this evidence, that mitigation was not an option for Mr. Beebeejaun, given the diagnosis and the medical evidence that he was unemployable on account of his PTSD. He was referred for treatment and the follow-up report from Dr. Yacower placed before the Tribunal confirmed that Mr. Beebeejaun was “still unable to work and undergoing treatment.”
[37] The context for this claim can also be taken from the Act which has specific provisions relative to first responders, including firefighters. The Act recognizes there are unique risks of workplace injuries faced by firefighters including with respect to heart injuries, certain
occupational cancers, and post-traumatic stress. Firefighters are exposed to traumatic events in the course of employment, and the corrosive impact of such exposures on their mental health is recognized as a matter of public policy.
[38] Where a firefighter is diagnosed with PTSD, it is presumed to be related to their occupation, unless the contrary is shown. This applies regardless of whether there is any current employment relationship with the accident employer, so long as the worker receives a diagnosis within 24 months after they ceased to work as a firefighter: WSIA, ss. 14, 15.1.
[39] The medical evidence included reports from Mr. Beebeejaun of some particularly traumatic exposures early in his career. His symptoms reported to his family clinician prior to dismissal included nightmares, ruminating thoughts and difficulty sleeping.
[40] The Tribunal received a discussion paper, prepared in 2010 by Dr. Diane Whitney on the nature of PTSD which confirms among other things, that:
PTSD can develop slowly over time, especially in emergency services personnel;
Stigma is a factor that can mask the early expression, presentation, or insight into symptoms;
Indirect signs can include increased alcohol use, sleep complaints, anxiety or depression, suicidal ideation, interpersonal and/or family conflict, social withdrawal, somatic distress and performance deterioration;
Acute symptoms may not present right away;
Repeated intense exposures can create an accumulated risk over time; and
Firefighters are part of a high-risk population for PTSD.
[41] Mr. Beebeejaun’s medical history for many years included some of the indirect signs discussed in the Whitney paper.
[42] The Reconsideration decision similarly discussed mitigation and Mr. Beebeejaun’s “conduct” as understood under the worker conduct line of cases, writing, at para. 74:
In other words the worker could not mitigate his wage loss resulting from his PTSD because the PTSD rendered him unemployable. It therefore cannot be concluded that he failed to mitigate his injury-related wage loss. The loss of earnings the worker experienced flows directly from his injury and not from any misconduct and it is therefore appropriate that the worker receive LOE benefits in respect of that loss under section 43 of the WSIA.
[43] The Tribunal found on the record before it, that Mr. Beebeejaun became entitled to LOE benefits before his termination. The medical evidence accepted by the WSIB was that he was rendered unemployable by a workplace injury deemed to have been sustained no later than November 6, 2017. This finding of fact meant that his entitlement to LOE could not be displaced by his termination, because his wage loss was already linked to his injury: he had been found unable to perform his job due to “compensable PTSD.” Based on this record, Mr. Beebeejaun
would have been entitled to LOE, with or without the termination, based on the finding that he suffered from PTSD as of November 6, 2017.
[44] The circumstances in which benefits cease after a worker has become eligible for LOE benefits are described in s. 43 (a) through (d) of the Act:
43 (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,
(a) the day on which the worker’s loss of earnings ceases;
(b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;
(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
(d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1).
[45] The Reconsideration Decision endorsed the worker conduct cases but ultimately determined that here, the deemed date of injury pre-dated the termination. Thus, these circumstances are distinguishable from the worker conduct cases. Based on its acceptance of the medical evidence and diagnostic reports, the WSIB determined that the compensable injury pre- dated termination.
[46] The Tribunal’s analysis was reasonable in this respect.
[47] This leads to the third issue, which is the way the Tribunal treated the relevant medical evidence.
c. In reaching its conclusion to grant Mr. Beebeejaun benefits, did the Tribunal misapprehend or ignore relevant medical evidence?
[48] The City submitted on reconsideration that the First Decision panel failed to consider:
b. The fact that the misconduct occurred over a lengthy period between 2014 and 2017 and predated the Worker's PTSD diagnosis.
d. The fact that the Worker was actively at work immediately before the date of termination.
e. The presence of significant medical evidence throughout 2017 that the Worker was entirely healthy and suffered from no impairment both before and immediately following the date of his termination.
f. The fact that, prior to termination, the Worker had performed the full duties of his position without requiring modified or accommodated duties.
g. The absence of any evidence that the Worker’s misbehavior was caused by his PTSD. Indeed, his behaviour was clearly caused by non-compensable factors, as suggested by the Worker’s past history of similar behaviour predating his PTSD.
h. The fact that the December 2017 PTSD diagnosis did not state that the Worker was disabled from working at that time.
i. The fact that the Worker did not file a claim for compensable benefits until months after the termination of his employment.
j. The potential impact of s. 14(7) of the WSIA, which provides that workers are not entitled to benefits for PTSD if it was caused by the termination of the worker’s employment.
[49] Counsel was not able to identify any portion of the First Decision or the Reconsideration reasons where the Tribunal ignored or misapprehended any of this evidence. Rather, the submissions amount to an invitation to re-weigh the same evidence that was before the Tribunal, or to apply different weight to these items of evidence relative to the medical opinions. I would decline to do so for several reasons.
[50] First, the Reconsideration Decision noted there were no countervailing medical reports to challenge those submitted. The City was not able to identify any “fundamental flaws” in the tendered medical reports. These were substantial reports, which the Reconsideration Decision found the First Decision panel was entitled to rely upon in coming to its conclusion that Mr. Beebeejaun was “rendered unemployable” as of November 15, 2017, by a compensable PTSD condition.
[51] Second, returning to Vavilov and the scope of reasonableness review. The Tribunals’ findings and inferences are entitled to deference. The medical reports opined that Mr. Beebeejaun suffered from “severe” PTSD. There is no error in fact that reveals the Tribunal failed to consider any significant fact or misstated any of the significant facts. It understood the chronology. It considered the medical evidence. It drew conclusions that did not depend on any obvious logical defects as listed in para. 104 of Vavilov, such as, “circular reasoning, false dilemmas, unfounded generalizations or an absurd premise.”
[52] The medical evidence and the subject matter of the issues on appeal go to the heart of the Tribunal’s expert mandate. Absent exceptional circumstances, which do not exist on this record, I would not interfere with the Tribunal’s decision: Vavilov at para. 125.
[53] Finally, the Tribunal listed and addressed over several paragraphs the City’s key arguments which were raised again on judicial review. The reasons for rejecting these submissions are intelligible and logical. The Tribunal applied the language of s. 43 to the facts at hand and within the scheme of the overall context of the Act.
Conclusion
[54] I would dismiss the application for judicial review. In accordance with the agreement of the parties, no costs are sought for or against the Tribunal. Costs are awarded in favour of the Respondent, Mr. Beebeejaun, in the amount of $7500 payable by the Applicant.
J. Leiper
I agree:
Sachs, J.
I agree:
Sachs, J.
Date of Release: June 29, 2023
Date Released: June 29, 2023
CITATION: City of Toronto v WSIAT and Beebeejaun, 2023 ONSC 3875
DIVISIONAL COURT FILE NO.: 582/21
DATE: 20230629
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Coats and Leiper JJ.
BETWEEN:
CITY OF TORONTO
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL AND AYOOB BEEBEEJAUN
Respondents
REASONS FOR JUDGMENT
LEIPER J.
Date of Release: June 29, 2023
[^1]: See Decision No. 195/11, 2011 ONWSIAT 1287, at para. 36; Decision No. 1099/11, 2012 ONWSIAT 450 at para.43; Decision No. 1158/13, 2013 ONWSIAT 1564 at para. 34; Decision No. 1917/11, 2012 ONWSIAT 218 at para. 46; Decision No. 3/11, 2011 ONWSIAT 51 at paras.13-15; Decision No. 153/11, 2011 ONWSIAT 565 at para. 29; Decision No. 717/19, 2020 ONWSIAT 1250 at para. 61; and Decision No. 925/15, 2018 ONWSIAT 3112 at para. 25.