Anderson v. WSIB et. al., 2015 ONSC 1530
COURT FILE NO.: C11-0023
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT ANDERSON
Plaintiff
(Responding Party)
– and –
WORKPLACE SAFETY AND INSURANCE BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and SUNLIFE ASSURANCE OF CANADA
Defendants
(Moving Parties)
Mr. Anderson, self-represented.
Alexandre R. J. Caza, for the Defendants WSIB and HMTQ.
Sunlife Assurance of Canada, not appearing.
HEARD: February 10, 2015
R. D. GORDON, R. S. J.
Overview
[1] The Defendant, the Workplace Safety and Insurance Board (the “WSIB”) has brought a motion for summary judgment to dismiss the Plaintiff’s claim.
[2] The WSIB submits that this action raises no genuine issue requiring a trial because: (1) the claims advanced by the Plaintiff are barred by the application of the applicable limitations period; (2) there is no evidence to support the allegations relied upon by the Plaintiff; and (3) the matters raised by the Plaintiff are within the exclusive jurisdiction of the WSIB.
Background Facts
[3] The WSIB is the provincial agency constituted under the Workplace Safety and Insurance Act (the “WSI Act”) to administer the workers’ compensation system in Ontario. Part of its function is to adjudicate claims filed by workers injured in the course of their employment and to pay them benefits to which they are entitled.
[4] The WSIB is also an employer with over 4,000 workers, and is itself registered as an employer under the WSI Act for workers’ compensation purposes.
[5] The Plaintiff, Mr. Anderson, is a former employee of the WSIB. He is also an injured worker with several workers’ compensation claims before the WSIB. Accordingly, Mr. Anderson’s interaction with the WSIB has been in two distinct capacities, one as an employee and one as a claimant. For the sake of clarity, when Mr. Anderson has made a claim relevant to his employment with the WSIB, it will be referred to as the “employer” and where he has made claims against the WSIB as a claimant it will be referred to as the “agency”.
[6] In 1977 Mr. Anderson injured his back while on the job. He submitted a claim to the WSIB, as agency, and received benefits.
[7] Mr. Anderson was hired by the WSIB on November 26, 1990 as an adjudicator assistant and eventually moved into the position of records control clerk in March of 1992. On March 16, 1992 there was a preliminary ergonomics assessment done of Mr. Anderson’s workplace. In the summary report prepared from the assessment and dated April 30, 1992 a recommendation was made that he undergo a Functional Abilities Evaluation (“FAE”). This was never done. On February 10, 1993, Mr. Anderson reported that he injured his neck during his employment and again applied for benefits from the WSIB, as agency.
[8] On February 15, 1993 Mr. Anderson found himself unable to return to work and the WSIB, as agency, began paying him income loss benefits. However, it did so under his 1977 claim, finding that his neck injury arose out of the lower back injury he had then sustained.
[9] On August 9, 1993, while Mr. Anderson was still off work, the WSIB, as agency, established physical restrictions for his return to work, and the WSIB, as employer, developed job duties to fit within those restrictions. Mr. Anderson returned to modified work duties on August 24, 1993, on a graduated basis, starting at 4 hours per day. On the next day, however, he left work and was of the view that his injury prevented him from returning. This time, the WSIB, as agency, maintained that he was able to return to work and determined that it would not extend workers’ compensation benefits to him. He tried to return to work on October 4, 1993, again on a graduated basis, but found himself unable to continue on October 15, 1993. The WSIB, as agency, began paying Mr. Anderson income replacement benefits from October 15, 1993.
[10] On November 4, 1993, Mr. Anderson advised the WSIB, as employer, that he wished to return to work. Before having him do so, the WSIB, as employer, determined that it would gather additional information on his medical condition. An ergonomic assessment of his work conditions was carried out in December of 1993 and a number of recommendations were made. On April 6, 1994, while the WSIB, as employer, was still trying to implement the required accommodations, and while Mr. Anderson continued to receive income replacement benefits, he resigned from his employment. As a result of his resignation the WSIB, as agency, denied him further benefits.
[11] Mr. Anderson appealed the decision of the WSIB, as agency, to deny him benefits following his resignation and was granted full loss of earnings benefits up to October 23, 1994, and partial benefits from that date until December 3, 1994. On a further appeal to the Workplace Safety and Appeals Tribunal (the “Tribunal”) Mr. Anderson was granted full loss of earnings benefits to April of 1995 and other ancillary relief.
[12] In May of 1994, Mr. Anderson contacted the WSIB, as agency, to advise that we was unhappy with the content of two memoranda in his claim files which he felt implied that he had committed fraud. He indicated that he was considering legal action.
[13] On August 10, 1995, Mr. Anderson wrote to the WSIB, as employer, alleging that while he was still employed with the WSIB, it failed to determine suitable work for him, engage vocational rehabilitation services or conduct a functional abilities assessment. He claimed that this was “discriminatory practice” and “negligence” and that he would pursue remedies through the Ontario Human Rights Commission.
[14] This action was started by way of Statement of Claim on November 17, 2011, and was subsequently amended on August 29, 2014.
[15] The amended Statement of Claim makes numerous allegations and references several causes of action.
Claims Against the WSIB as Employer
[16] The first allegation made by Mr. Anderson is that the WSIB, as employer, deliberately withheld and failed to act upon the memorandum dated April 30, 1992 from the WSIB’s Employee Health Services to its Sudbury offices. The memorandum described the ergonomic assessment that had been conducted of Mr. Anderson and recommended that he undergo a Functional Abilities Evaluation (“FAE”). That recommendation was not communicated to Mr. Anderson at the time and was never completed. Essentially, Mr. Anderson claims that the failure of the WSIB, as employer, to complete the FAE as recommended was an act of bad faith which eventually resulted in his inability to continue his employment. He couches these claims in language of breach of contract, constructive dismissal, breach of fiduciary duty, breach of trust, intentional infliction of physical pain, intentional infliction of mental distress, fraudulent concealment, negligence, misfeasance of public office, bad faith, and breaches of several provisions of the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms (the “Charter”), the WSI Act and the Criminal Code.
[17] The second allegation made against the WSIB, as employer, is that he was subject to gender discrimination contrary to the Ontario Human Rights Code and the Charter. He says this is so because the WSIB, as employer, acted on a memorandum from its Employee Health Services (also dated April 30, 1992) which made the same recommendation for an FAE for a female employee. He says that moving forward with the FAE for the female employee while failing to move forward with the FAE for him, amounted to gender discrimination.
[18] The third allegation is that the WSIB, as employer, failed to accommodate his physical restrictions, failed to address his increasing pain in the workplace, failed to provide a safe workplace for him, and failed to cooperate in his early and safe return to work. He also claims that he was harassed for not being able to do all aspects of his job and that he was threatened in order to force his return to work. These allegations are couched in language of bad faith, misfeasance of public office, intentional infliction of mental distress, breach of trust and human rights violations. Presumably, these allegations would also factor into his claim of constructive dismissal.
Claims Against WSIB as Agency
[19] Mr. Anderson’s first allegation against the WSIB, as agency, is that it wrongfully accused him of fraud in a file notation on his WSIB claim file, which he discovered in May of 1994. This notation stated “possible fraud” and cited two memoranda in his WSIB claim file which stated that he may have been operating his own business while off work on benefits, and that he had been seen doing some home improvements during the same time frame. He alleges that this information was used to “blacklist” him and deliberately “misadjudicate” his claims. The causes of action alleged include bad faith, negligent misrepresentation, abuse of power, intentional infliction of mental distress, and misfeasance in public office.
[20] Mr. Anderson also raises several concerns with the manner in which the WSIB, as agency, adjudicated his workers’ compensation claims. He alleged that the WSIB, as agency, wrongfully amalgamated his 1993 claim with his 1977 claim, thereby transferring costs from the WSIB, as employer, and reducing the benefits to which he would otherwise be entitled. He also claims that upon amalgamation of these claims he had a right under section 30(2) of the WSI Act to elect between claiming WSIB benefits under the 1993 claim or bringing an action against the WSIB, as employer, as a third party responsible for his injuries. He alleges that the WSIB, as agency, was negligent for failing to advise him of his right of election and in not pursuing a subrogated action against the WSIB, as employer, for the injuries he suffered in the 1993 claim. Lastly, he also alleges that the WSIB, as agency, is responsible for errors and failures in the adjudication of his claims in 1993 and 1994, including failing to respond to medical reports, making incorrect decisions on benefits, and failing to implement parts of the Tribunal’s decision referred to above. All of these allegations are made in the context of bad faith and negligence on the part of the WSIB, as agency.
Analysis
[21] The Defendant’s motion is for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, which allows the Court to grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim. There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits at the motion. This will be the case when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result [See Hryniuk v. Mauldin 2014 SCC 7, [2014] S.C.J. No. 7].
[22] With respect to Mr. Anderson’s claim that the WSIB, as employer, is liable to him for failing to arrange the FAE as recommended, it is apparent that he became aware of the recommendation for the FAE, and the WSIB’s failure to provide it, in May of 1994, some seventeen and one half years before this action was started.
[23] With respect to Mr. Anderson’s claim against the WSIB, as employer, based on gender discrimination, it is apparent that Mr. Anderson had to have known of the different treatment towards his female colleague when he acted as her representative before the WSIB, as agency, and was, on May 17, 1996, provided with an appeal decision in which details of the FAE completed for her benefit were disclosed. This was some fifteen and one half years before this action was started.
[24] With respect to Mr. Anderson’s claims against the WSIB, as employer, and which are based upon his treatment as an employee, those facts would have been known to him when they occurred between 1990 and 1994, a full seventeen and one half years before this action was started.
[25] Mr. Anderson’s claim against the WSIB, as agency, alleging damages due to the notation of “fraud” in his file was known to him as early as May of 1994, again a full seventeen and one half years before this action was started.
[26] Finally, his claims against the WSIB, as agency, for failures and errors in the adjudication of his various claims all date from the 1990’s and must necessarily have been known to him when they occurred.
[27] It is clear that all of the facts upon which Mr. Anderson has based his claims were known to him more than fifteen years before he started this action and that the action was started long after any applicable limitations periods had expired.
[28] However, Mr. Anderson made several arguments in reply, each of which I shall address in turn.
[29] The first position taken by Mr. Anderson is that the limitation periods did not begin to run until the Workplace Safety and Appeals Tribunal issued its decision on August 21, 2012 indicating that it did not have the jurisdiction to grant the Charter and Ontario Human Rights Code remedies sought by him. I disagree. His pursuit of his Charter and Human Rights Code remedies through the WSIB, as agency, does not have the effect of extending the limitations period, particularly when the limitation period for a civil action would have lapsed even prior to the matters being brought before the agency.
[30] The second position taken by Mr. Anderson is that it is only when the WSIB, as agency, determines that an injury has been caused by a third party that the action accrues against the third party. Since the WSIB, as agency, has never made that determination in his case, no limitations period has begun to run. I disagree. Section 28 of the WSI Act provides that there can be no liability of the WSIB, as employer, for any of the workplace injuries alleged to have been sustained by Mr. Anderson. Nothing the WSIB, as agency, determines can change that.
[31] Mr. Anderson next argued that resolution of claims through the WSIB, as agency, amount to negotiations with the assistance of a third party dispute resolution officer, thereby extending the limitations period as provided in section 11(1) of the Limitations Act. Again I disagree. The WSIB claims process does not amount to an agreed process to have an independent third party assist in resolving the claim. It is a legislated means of dispute resolution for injured workers.
[32] Mr. Anderson also argued that the WSIB, as agency, concealed an internal memorandum from Dr. Kingstone dated August 23, 1995 in which he summarized Mr. Anderson’s request for an FAE and indicated that although the WSIB, as employer, could sponsor an FAE, it would do so only for its employees, which Mr. Anderson no longer then was. He takes the position that his cause of action against the employer did not begin until this document was disclosed to him in December of 2011. Even if I were to accept that this document was wilfully concealed by the WSIB, it adds little to the information already known to Mr. Anderson as a result of disclosure made to him in 1994. Certainly, it does not impact the discoverability of his cause of action and it does not amount to wilful concealment as contemplated in section 15(4) of the Limitations Act.
[33] Mr. Anderson next argued that the consolidation of the claims from 1977 and 1993 rendered the WSIB, as employer, a third party wrongdoer, thereby allowing him to bring this action against it. As I have determined above, the allegation in 1977 was that Mr. Anderson was injured on the job. The allegation in 1993 was that Mr. Anderson was injured on the job. There is no allegation that while working on the job any third party was responsible for the injury. I fail to appreciate how the WSIB’s determination that his injury in 1993 arose out of the back injury he suffered in 1977 could render the WSIB, as employer, liable as a third party.
[34] Lastly, Mr. Anderson alleged that the time limits for his claim for mental distress did not start to run until the WSIB, as agency, disallowed his claim in 2014. Again, whether or not the agency allows or disallows his claim has no impact on the running of a limitations period.
[35] In essence, Mr. Anderson’s complaints against the WSIB, as employer, are that he was treated badly, discriminated against, and not given adequate accommodation. He says this eventually lead to his resignation and amounted to constructive dismissal. All of the facts in support of his allegations have been known to him since 1994. In my view, it is obvious that the limitation period for this action had long passed when the action was started in November of 2011.
[36] In essence, Mr. Anderson’s complaints against the WSIB, as agency, are that: (1) his various claims have been improperly or wrongly adjudicated; and (2) that the agency did not adjudicate his claims in good faith, particularly when it used the word “fraud” in reference to his activities.
[37] With respect to his unhappiness with the results of his various claims, the WSI Act is very clear in stating that no action lies to obtain workers’ compensation benefits and that all claims for benefits shall be heard and determined by the Board (s. 26(1)), which has exclusive jurisdiction (s. 118(2)). The WSI Act further provides that an action or decision of the Board under the Act is final and is not open to question or review in a court (s. 118(3)). It follows that to the extent Mr. Anderson is unhappy with the results of the adjudication of his workers’ compensation claims, the court has no jurisdiction to review or question those results.
[38] With respect Mr. Anderson’s claims of bad faith, that is, the manner in which the WSIB, as agency, has dealt with him and his claims, all of the allegations he has made have been known to him since 1995 and it is obvious that the limitation period for those claims has long expired.
Conclusion
[39] There is no genuine issue requiring a trial in this case. All of the claims made by Mr. Anderson have either expired by virtue of the expiry of the applicable limitations period, or cannot be maintained due to the exclusive jurisdiction of the WSIB. It follows that the Plaintiffs claims are dismissed.
[40] If the parties wish to make submissions with respect to costs they may do so in writing within 45 days. Submissions shall be limited to 3 pages plus attachments each.
R. D. GORDON, R.S.J.
Released: March 18, 2015
COURT FILE NO.: C11-0023
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT ANDERSON
Plaintiff
(Responding Party)
– and –
WORKPLACE SAFETY AND INSURANCE BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and SUNLIFE ASSURANCE OF CANADA
Defendants
(Moving Parties)
REASONS FOR JUDGMENT
R. D. GORDON, R.S.J.
Released: March 18 , 2015