CITATION: Priolo v. Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 764

DIVISIONAL COURT FILE NO.: 211/21

DATE: 20230131

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ROBERT PRIOLO, Applicant/Responding Party

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, Respondent/Moving Party

BEFORE: Nishikawa J.

COUNSEL: Tebasum Durrani and Kathrin Furniss, for the Applicant

Chris Paliare and Mariam Moktar, for the Respondent

HEARD at Toronto: January 30, 2023 (in writing)

ENDORSEMENT

Overview and Background

[1] The Applicant, Robert Priolo, seeks judicial review of three decisions of the Respondent, the Workplace Safety Insurance and Appeals Tribunal (WSIAT). The WSIAT brings a motion to dismiss the application for delay.

[2] Following a workplace injury in 2006, the Applicant requested psychological impairment entitlement for the first time in 2012. The matter had a lengthy history before the WSIAT that will not be detailed in this endorsement. The Applicant seeks judicial review of the following decisions of the WSIAT: (i) the decision dated June 6, 2017 denying the Applicant’s claim for psychological impairment entitlement; (ii) the decision dated February 20, 2019 denying the Applicant’s first request for reconsideration; and (iii) the decision dated May 1, 2020 denying the Applicant’s subsequent request for reconsideration.

[3] The Applicant commenced this application for judicial review on March 5, 2021, just over 10 months after the final reconsideration decision. The Applicant takes the position that because of the suspension of limitation periods from March 16, 2020 to September 14, 2020 under O. Reg 73/20,[^1] there was no delay in bringing the application. Alternatively, if the suspension of limitation periods did not apply, the Applicant submits that in the circumstances, the delay is not undue or inordinate warranting that the application be dismissed.

[4] The WSIAT takes the position that the suspension of limitation periods under O. Reg. 73/20 did not apply and that the Applicant has no reasonable explanation for the lengthy delay in filing his judicial review application.

[5] For the reasons that follow, the motion is dismissed.

Analysis

The Applicable Principles

[6] Judicial review is an equitable and discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case: Ransom v. Ontario, 2010 ONSC 3156 at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.). An applicant is under an obligation to commence and perfect their judicial review application in a timely manner.

[7] The 30-day period for commencing an application for judicial review under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, does not apply because the decisions were made before that provision came into effect. The applicable timelines are those established at common law by the Divisional Court to the effect that, generally, an application for judicial review should be started no later than six months after the decision under review was made: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383 (Div. Ct.), at para. 50.

[8] In exercising its discretion to dismiss an application for judicial review, the court will consider the following factors:

(a) The length of the delay;

(b) The reasonableness of any explanation offered for the delay; and

(c) Any prejudice suffered by the respondent as a result of that delay.

Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15.

Application

Length of the Delay

[9] In this case, the Applicant’s position is that the application for judicial review is timely because it had to be filed within six months of the end of the suspension of limitation periods on September 16, 2020, or before March 15, 2021. The Respondent’s position is that the application had to be filed within six months of the final reconsideration decision, or by November 1, 2020, and was therefore four months late.

[10] O. Reg. 73/20 suspended limitation periods established by “any statute, regulation, rule, by-law or order of the Government of Ontario[.]” It is unlikely that this provision would apply to a common law timeline subject to the discretion of the court in its application.

[11] In any event, however, even if the six-month timeline was not suspended, the delay at issue from the final reconsideration decision to the commencement of the judicial review application is four months. The WSIAT has not suggested that the Applicant was required to bring an application for judicial review at an earlier stage, such as after the merits decision in 2017. In my view, a four month delay in bringing an application for judicial review does not constitute an inordinate delay, especially in the circumstances, which include the COVID-19 pandemic.

Reasonableness of the Explanation

[12] The Applicant submits that even if O. Reg. 73/20 does not apply to the presumptive time frame for commencing an application for judicial review, the underlying rationale for the suspension of statutory limitation periods is relevant to the issue of whether the delay was undue and the reasonableness of his explanation for the delay. The Applicant submits that it was reasonable for him not to pursue a non-urgent matter at a time when court resources were constrained by the pandemic.

[13] I would not go so far as to accept the Applicant’s submission that it was reasonable to refrain from bringing his application for judicial review while court resources were under pressure from the pandemic. The Applicant, who has been represented by counsel throughout, ought to have followed the procedures specified in the Notice to Profession, of which counsel are expected to be aware: Go Fleet Corporation v. So, 2021 ONSC 2199 at para. 10.

[14] In Democracy Watch, at para. 50, Favreau J. (as she then was) noted the suspension of limitation periods as a factor in determining whether to dismiss an application for judicial review for delay. In this case, given that the delay was not lengthy and the suspension of other timelines because of the pandemic during the relevant time period, I find that the Applicant’s explanation weighs against dismissing the application for delay.

Prejudice Resulting From the Delay

[15] The WSIAT submits that the passage of time raises a presumed prejudice to the integrity of the workplace insurance scheme and the finality of decisions. The WSIAT further notes that there are decisions pertaining to the Applicant dating back to 2012 and that the merits decision under review was made over four years ago. The WSIAT has not, however, adduced evidence of actual prejudice. Moreover, it has not identified prejudice attributable to the four-month delay in bringing the application.

[16] Where the delay is lengthy, prejudice can be presumed: Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.) at para. 9. Under the circumstances, it is not clear to me that the length of the delay would result in a presumption of prejudice. Even presuming some prejudice arising from the delay, I am not satisfied that the prejudice to the WSIAT arising from the four-month delay would warrant this court exercising its discretion to dismiss the application for judicial review. The Applicant has not raised any procedural fairness or other issues requiring evidence beyond the Record of Proceedings.

[17] The WSIAT filed its Record of Proceedings in August 2022. The Applicant has filed his factum on the application. There is no reason why this matter cannot proceed to a hearing in an expeditious manner. Should the parties be unable to agree to a timeline for the remaining steps in the proceeding, they may request a case management conference before me.

Conclusion

[18] In the circumstances, I am not satisfied that the delay is undue or inordinate and that it has caused prejudice to the WSIAT. As a result, it is not plain and obvious that this court should exercise its discretion to dismiss the application for judicial review for delay.

[19] Accordingly, the motion to dismiss the application for judicial review is dismissed. Neither party requested costs in their motion materials, nor did they submit costs outlines. No costs of the motion are ordered.

“Nishikawa J.”

Date: January 31, 2023

[^1]: O. Reg. 73/20 was revoked on September 14, 2020 under O. Reg 457/20.