Court File and Parties
CITATION: Li v Kiriakos, 2024 ONSC 4269
DIVISIONAL COURT FILE NO.: 360/24
DATE: 20240730
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Zongen Li, Applicant
-and-
Maria Kiriakos et al, Respondents
BEFORE: FL Myers J.
COUNSEL: Li Zongen, Self-Represented Applicant Stephanie Pope and Rebecca Woodrow, for the Respondents
HEARD at Toronto: July 30, 2024
Endorsement
Mr. Li has made a claim for workers’ compensation benefits. Mr. Li’s claim is currently under appeal before the Workplace Safety and Insurance Appeals Tribunal. The appeal is being heard in writing. No final decision has been made yet. But the appeal is fully briefed and a result may be released by WSIAT at any time.
Mr. Li brings this proceeding for judicial review to challenge preliminary orders made by WSIAT and to prevent it from hearing the appeal in the interim.
In a triage direction dated July 3, 2024, I convened a case conference on the following basis:
I have reviewed the enclosed material delivered by Mr. Li. He wishes to bring a motion for procedural relief before the hearing of his proposed judicial review. I am very concerned that the proposed proceeding is premature because the board has yet to make a final ruling on Mr. Li’s appeal. I am also concerned that this proceeding may be frivolous, vexatious, or an abuse of the court’s process. While Mr. Li may believe that illegal steps have been taken against him, it is difficult to find a significant legal or factual argument to support a claim for judicial review in Mr. Li’s material.
I therefore convene a case conference before me. At the case conference I will try to understand better the processes that Mr. Li seeks to implement. I will consider scheduling the steps in the proceeding as may be appropriate. Under Rule 50.13 (6) of the Rules of Civil Procedure, both parties are notified that at the case conference, I may also consider whether this application ought to be dismissed for being premature or frivolous, vexatious, or an abuse of process. Mr. Li may submit up to 10 pages of written argument in advance to try to identify for the court why this proceeding ought to be allowed to continue at this time.
Mr. Li delivered a comprehensive submission in the form of a proposed motion. He seeks 16 heads of relief to effectively solve his concerns and avoid the main hearing of this application.
At its most basic, Mr. Li challenges the filing before the appeal tribunal of a Medical Discussion Paper concerning injuries of the type claimed by Mr. Li.. He says that the Medical Discussion Paper is unsigned and is illegal evidence. He challenges many of the statements in the Medical Discussion Paper.
Mr. Li has every right to challenge the admissibility and weight of the Medical Discussion Paper before WSIAT. He has done so.
But Mr. Li submits that the acceptance of the filing of the “illegal” Medical Discussion Paper taints the tribunal members and makes them biased or otherwise unqualified to hear his appeal.
Mr. Li says that proceeding with the appeal before WSIAT now would violate his human rights and his rights under the Charter of Rights. He challenges the decision by WSIAT to defer a decision on a Charter claim until it first decides if Mr. Li has substantive entitlement to benefits under the regulatory scheme.
I appreciate the sincerity of Mr. Li’s views. But it is the strong preference of the court and the law of judicial review, that the tribunal whose decisions are challenged should first finish their proceeding. The Court of Appeal has decided that “a court should not interfere in an administrative proceeding until it has run its course.” Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 68.
There may be cases where it is necessary for a court to intervene before a tribunal has finished its proceeding in order to prevent a miscarriage of justice. Such is not the case here though. It is possible, for example, that WSIAT will grant Mr. Li the relief he seeks in his appeal. If Mr. Li wins his appeal, despite the admission of the Medical Discussion Paper, then this application will be moot. Or, perhaps WSIAT will deny Mr. Li’s appeal but not based at all on the Medical Discussion Paper. It may agree completely with all of his concerns about that document. If that happens then Mr. Li may have a very different application for judicial review.
I am not prepared to schedule a motion to remove members of the appeal tribunal for bias based on an evidence ruling to which Mr. Li objects. Neither do I see a basis for a Charter claim based on an evidence ruling or a ruling on the timing of hearings of issues by an administrative tribunal. If Mr. Li has raised his concerns about the propriety of the panel hearing his appeal with the panel itself, then he needs to await a ruling by the panel before challenging the constitution fo the panel in this court.
In all, this application appears to be premature. It is brought too soon because the court needs WSIAT to finish the appeal before the court can review what it has done. Mr. Li has all of his rights to challenge the rulings and the constitution of the panel once a final decision is released.
I therefore stay this application until the final decision on all of Mr. Li’s appeal issues is released by WSIAT. I do not dismiss this proceeding only because it seems apparent that this may be but a first round in what turns into a multi-round contest. A judge may later find it efficient to simply lift the stay in this proceeding rather than having Mr. Li start again. Much will turn on what happens at WSIAT.
WSIAT does not seek costs.
FL Myers J.
Date: July 30, 2024