COURT FILE NO.: 98-CV-159435
DATE: December 10, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WORKPLACE SAFETY AND INSURANCE BOARD
Plaintiff
– and –
JOSEPH DAYKIN
Defendant
Eric Kupka for the Plaintiff
Joseph Daykin, self-represented
AND BETWEEN:
JOSEPH DAYKIN
Plaintiff by Counterclaim
– and –
WORKPLACE SAFETY AND INSURANCE BOARD
Defendant by Counterclaim
HEARD: December 5, 2012
PERELL, J.
REASONS FOR DECISION
[1] This is a motion by the Plaintiff, the Workplace Safety and Insurance Board (“WSIB”), for summary judgment dismissing a counterclaim.
[2] Under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., WSIB is a statutory corporation charged with administering Ontario’s worker’s compensation system.
[3] In April 1996, the WSIB advised the Defendant, Joseph Daykin, that it was reversing his entitlement to benefits as of May 23, 1992 and that it was claiming $116,649.84 as an overpayment.
[4] When Mr. Daykin launched an administrative appeal of the Board’s decision, the WSIB recalculated and increased the amount of its repayment claim to $120,563.67. Criminal charges also followed, and Mr. Daykin was convicted and ordered to pay restitution of $4,330, which he did. The WSIB reduced its overpayment claim to $112,792.70.
[5] On November 26, 1998, WSIB commenced an action to recover the overpayment and in February 1999, Mr. Daykin filed a statement of defence.
[6] The WSIB agreed to hold the civil action in abeyance pending Mr. Daykin’s appeal in the administrative proceedings.
[7] It took more than three more years to proceed, but on December 24, 2001, Mr. Daykin’s appeal was denied by the WSIB’s Appeals Branch.
[8] On May 5, 2002, Mr. Daykin filed a Notice of Appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
[9] Over seven years passed until the appeal was heard in August 2009. WSIB says that the delay was caused by Mr. Daykin.
[10] On August 29, 2009, Mr. Daykin’s appeal was denied.
[11] Having succeeded in the administrative proceedings, the WSIB reactivated its civil action, and it moved for a summary judgment.
[12] Before the summary judgment was heard, Mr. Daykin brought a counterclaim against WSIB through a statement of defence and counterclaim that was issued on November 15, 2011.
[13] On February 1, 2012, by court order, Mr. Daykin was granted leave to file the counterclaim. Leave was granted without prejudice to the WSIB asserting that the counterclaim was statute-barred.
[14] ON December 6, 2011, the WSIB delivered a statement of defence to the counterclaim.
[15] On April 16, 2012, the court granted WSIB’s motion for summary judgment on its claim. Justice Lederman’s endorsement was as follows:
Mr. Daykin appeared in person. The Plaintiff, WSIB, seeks summary judgment upon the overpayment of benefits as determined by the Board and confirmed on appeal by the Workplace Safety & Insurance Appeals Tribunal (“WSIAT”), the final level of administrative appeal from all workers’ compensation matters.
Mr. Daykin takes issues with those decisions alleging, among other things that the Board knew that he had been working at the material time and the failure led the Board and or WSIAT to accept certain medical evidence and that he mistakenly pleaded guilty to fraud under $5,000. These are matters that he raised or could have raised before those tribunals. The Board and WSIAT have exclusive authority to determine if there is an overpayment and the amount thereof. They have exclusive jurisdiction over such matters. The overpayment is an amount owing to the Board. The Board is entitled to seek judgment for overpayment in this court but the court cannot inquire into the calculation of the overpayment or entitlement thereto.
Any concerns that Mr. Daykin may have about the procedural fairness before the Board and WSIAT may be the subject of an application for judicial review to the Divisional Court but cannot be a defence to this motion.
There is no viable limitation defence to this action was commenced within the 6 year period, the limitation period then in effect.
The Board seeks summary judgment on its claim but not with respect to the counterclaim.
There are no genuine issues requiring a trial on the claim.
Therefore, summary judgment will go in favour of the Plaintiff board in the amount of $112,792.70.
The counterclaim remains. The Board seeks $500 for costs and such costs are granted.
[16] Having obtained judgment on its claim, the WSIB now moves to have Mr. Daykin’s counterclaim dismissed.
[17] The WSIB submits that there are no genuine issues for trial.
[18] It submits that insofar as Mr. Daykin’s counterclaim is based on the allegation that the WSIB’s civil action was unlawful or improper, this cannot be the case since the court has already granted judgment in the civil action demonstrating that the action was lawful and proper.
[19] Further, it submits that insofar as Mr. Daykin’s counterclaim is based on the allegation that the Board did not allow him to exhaust his administrative appeals before commencing its action, this is no basis for a claim, especially because the Board held its civil claim in abeyance and waited 10 years while Mr. Daykin pursued his administrative tribunal appeals.
[20] Further still, WSIB submits that insofar as Mr. Daykin’s claim is based on the allegation that the Board made mistaken decisions about his entitlement to accident benefits, this is precisely the subject matter of the appeal tribunal’s exclusive jurisdiction.
[21] Moreover, the WSIB relies on sections 26 and 118 of the of the Workplace Safety and Insurance Act, 1997 which state:
No action for benefits
- (1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.
Benefits in lieu of rights of action
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.
Jurisdiction
- (1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise. 1997, c.16, Sched. A, s. 118(1).
Same
(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:
Whether an industry or a part, branch or department of an industry falls within a class or group of industries in Schedule 1 or in Schedule 2 and, if so, which one.
Whether personal injury or death has been caused by an accident.
Whether an accident arose out of and in the course of an employment by a Schedule 1 or Schedule 2 employer.
Whether a person is co-operating in reaching his or her maximum medical recovery, in returning to work or in the preparation and implementation of a labour market re-entry plan.
Whether an employer has fulfilled his, her or its obligations under the insurance plan to return a worker to work or re-employ the worker.
Whether a labour market re-entry plan for a person is to be prepared and implemented.
Whether loss of earnings has resulted from an injury.
Whether permanent impairment has resulted from an injury, and the degree of the impairment.
The amount of a person’s average earnings and net average earnings.
Whether a person is a spouse, child or dependant of an injured worker for the purposes of the insurance plan.
Finality of decision
(3) An action or decision of the Board under this Act is final and is not open to question or review in a court.
Same
(4) No proceeding by or before the Board shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.
[22] As appears, s. 118 bars claims against WSIB arising out of its decisions, and s.26 of the Act bars actions against the Board for the payment of benefits. Therefore, the WSIB submits that Mr. Daykin has no viable claims against the WSIB.
[23] As an alternative argument, the WSIB submits that there is no genuine issue for trial that the counterclaim is statute-barred because it involves claims for loss of wages from 1992 to 1999. The counterclaim was not made until 2011, which the WSIB submits is long after Mr. Daykin’s claims would have become statute-barred.
[24] In resisting the motion for summary judgment, Mr. Daykin submits that there are genuine issues for trial in his counterclaim. The best articulation of this argument is in paragraphs 29 to 31 of his factum for this motion, which state:
The merit of this case is that the WSIB has accepted without question the medical evidence that they themselves presided over and that they also agreed with the medical specialist that was hired by WSIB to access a permanent injury. They were liable to honour that claim that the injured worker made and which was accepted by WSIB. No new medical evidence was ever produced by WSIB that would change the liability that they have towards Joseph Daykin.
Therefore the court must consider the evidence strictly on the facts that a permanent injury did not take place, and that the WSIB had overturned its decision based on information that the defendant Joseph Daykin had given them namely that he had worked for 6 months but could not continue to work due to extreme pain. They have given Joseph Daykin permission to work when they disallowed the claim during his period of work.
Therefore, the amended statement of defence does have a genuine issue requiring a counterclaim.
[25] Mr. Daykin’s argument in paragraphs 29 to 31, which he augmented during his oral argument, is essentially that the Board and the appeal tribunals mistakenly, negligently, or unfairly dealt with the medical evidence that was the basis for the Board’s claim for repayment.
[26] Mr. Daykin’s arguments are essentially the same arguments that he made in attempting to resist the Board’s motion for summary judgment of its claim. Those arguments failed with respect to the claim, and in my opinion the same arguments fail for the counterclaim for precisely the same reasons that were set out by Justice Lederman in granting summary judgment on the claim.
[27] With the addition of also setting out the privative sections 26 and 118 of the Act, I, therefore, repeat Justice Lederman’s conclusion that the Board and the appeal tribunals have substantive and exclusive jurisdiction over the subject matter of Mr. Daykin’s counterclaim, and I repeat that if Mr. Daykin has complaints about the procedural fairness of the proceedings, he must proceed by way of an application for judicial review. I make no comment about whether it is not too late to bring judicial review proceedings.
[28] It is unfortunate and a source of confusion that the WSIB bifurcated its motions for a summary judgment, with the result that the matter of whether Mr. Daykin has a cause of complaint or a cause of action about how the Board and the appeal tribunals dealt with the medical evidence has now had to be argued twice.
[29] I, therefore, grant the WSIB’s motion, but I do so without costs.
[30] I am denying costs because of the WSIB’s bifurcated approach to its motion for summary judgment.
Perell, J.
Released: December *, 2012
COURT FILE NO.: 98-CV-159435
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WORKPLACE SAFETY AND INSURANCE BOARD
Plaintiff
‑ and ‑
JOSEPH DAYKIN
Defendant
AND BETWEEN:
JOSEPH DAYKIN
Plaintiff by Counterclaim
‑ and ‑
WORKPLACE SAFETY AND INSURANCE BOARD
Defendant by Counterclaim
REASONS FOR DECISION
Perell, J.
Released: December 10, 2012.