Court File and Parties

COURT FILE NO.: CV-18-00000213-0000 DATE: 20180906 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BERNARD F. SMITH, Plaintiff AND: WORKPLACE SAFETY & INSURANCE BOARD, THE ATTORNEY GENERAL FOR ONTARIO and THE WSIB APPEALS TRIBUNAL, Defendants

BEFORE: Mr. Justice Graeme Mew

READ: 6 September 2018, at Kingston

Endorsement

[1] This matter was referred to me by the Registrar pursuant to Rule 2.1.01(7) following receipt of written requests by the defendants made under Rule 2.1.01(6).

[2] In accordance with the summary procedure established under Rule 2.1, the Registrar gave notice to the plaintiff in Form 2.1A that the court was considering making an order to stay or dismiss his action. The plaintiff responded by way of a submission letter dated 14 August 2018. Attached to that submission letter was a three page extract from an unidentified article which dealt generally with corruption in governmental entities.

[3] The defendant, Workplace Safety & Insurance Board (“WSIB”), has also provided the court (and all other parties, including the plaintiff) with copies of (a) a statement of claim issued on 6 August 2004 bearing court file number 15621/04 (Kingston) between Bernard Smith (plaintiff) and Workplace Safety & Insurance Board, The Attorney General for Ontario and Her Majesty the Queen in Right of Ontario (defendants), and (b) an endorsement in that action by Tranmer J., granting a motion for summary judgment dismissing Mr. Smith’s action against the Workplace Safety & Insurance Board (proceedings against the other defendants having been discontinued prior to that).

[4] The genesis of Mr. Smith’s present claim is a workplace accident that occurred on 26 January 1972. He subsequently filed a claim with what was then known as the Worker’s Compensation Board (now WSIB). It appears that his claim was initially misfiled and there was considerable delay until, ultimately, his claim was adjudicated upon on 12 June 2000. His claim for entitlement was denied.

[5] Mr. Smith appealed the adjudicator’s decision to the WSIB. By a decision dated 27 September 2001, the denial of his claim was upheld.

[6] A further appeal was taken to the Workplace Safety & Insurance Appeals Tribunal (“WSIAT”) on 2 July 2003. By a decision dated 7 August 2003, his appeal was denied.

[7] There was a further WSIAT hearing convened to consider a request by Mr. Smith for a reconsideration of the earlier appeal decision. The request for reconsideration was denied by way of a decision dated 30 October 2006.

[8] In the meantime, Mr. Smith commenced a civil action on 6 August 2004. He sought damages for the injuries sustained as a result of his workplace action. He also sought damages for breach of trust and fiduciary duty arising from the defendants’ alleged mismanagement of his claim in relation to the accident.

[9] On a motion for summary judgment, Tranmer J. held that the court had no jurisdiction to determine Mr. Smith’s claim for loss of benefits under the Worker’s Compensation legislation. He further concluded that there was no evidence of negligence, breach of trust or a breach of fiduciary duty on the part of the board. At para. 16 of his decision, he noted:

While there was a mix-up in locating Mr. Smith’s original file, once that confusion was corrected, Mr. Smith’s claims were heard in accordance with the statutory provisions and all appeals permitted by law, advanced by him, were heard and adjudicated upon.

[10] Tranmer J. was evidently concerned about the confusion which had occurred resulting in significant delay in the processing of Mr. Smith’s claim and, notwithstanding that the WSIB had been successful on the motion for summary judgment, ordered the WSIB to pay Mr. Smith costs of the action in the amount of $3,000 plus H.S.T.

[11] The statement of claim in the present action repeats, with some embellishment, the allegations relating to Mr. Smith’s workplace injury and the medical issues he claims to have suffered as a result. Reference is made to the errors that were made in the processing of his claim and the resulting delay and expense incurred by him. He pleads, as he did in the 2004 action, (albeit with a slight variation in terms of the defendants) that the defendants were negligent as a result of the misfiling of his compensation claim. But he continues:

All of the above mentioned had lots of time to correct and settle this matter, but instead acted in a negligent and in a criminal way and decided not to help me.

[12] The statement of claim goes on to allege that there was some form of identity theft, resulting in someone else advancing a claim using Mr. Smith’s name, social insurance number and birth date and that WSIB was not telling the truth and was trying to cover up what had occurred.

[13] The statement of claim makes reference to the summary judgment decision of Tranmer J. and contains an acknowledgement that Mr. Smith failed to appeal that decision “due to numerous health problems”.

[14] At para. 20 of the statement of claim, Mr. Smith alleges:

(a) that the defendants are guilty conflict of interest, and bribery; (b) that the WSIB and the WSIAT are funded with injured workers’ funds, which is a conflict of interest and bribery; (c) that the Attorney General for Ontario is funded with injured workers’ funds, probably through legislation that is no different than money laundering, which is also a conflict of interest and bribery; (d) that injured workers’ funds are available in grants to lawyers, the justice system, the Workers Adviser, and Legal Aid, also a conflict of interest and bribery.

[15] In addition to further allegations of conflict of interest and bribery, the plaintiff asserts that the WSIB and the WSIAT are corrupt. He pleads the Charter of Rights and anti-bribery and anti-corruption legislation.

[16] In his submission letter, the plaintiff claims that his experience dealing with the WSIB has been nothing less than a nightmare. He repeats his pleaded allegations of bribery, corruption and conflict of interest. He asks, rhetorically:

Who can make a decision if every one involved in this matter are being funded, with grants and subsidy’s, with injured workers funds, without being guilty of conflict of interest?

[17] As the Court of Appeal explained in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, the procedure in Rule 2.1 enables the court to effectively exercise a gatekeeping function to weed out litigation that is clearly frivolous, vexatious or an abuse of process. The use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process provided for by Rule 2.1. The Court of Appeal continues at para. 11:

The focus under r. 2.1 is on the pleadings and any submissions of the parties made pursuant to the rule. The role of the motion judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process.

[18] To the extent that Mr. Smith’s action attempts to re-litigate the claims that were advanced by him in his 2004 action, the present action is an abuse of process. The 2004 action was dismissed by way of the summary judgment decision of Tranmer J. No appeal was taken from that decision.

[19] Further, it is apparent from the face of the statement of claim that Mr. Smith’s allegations of bribery, corruption, money laundering and conflict of interest are frivolous and vexatious. He makes numerous bald allegations, peppered with allegations of criminal and discreditable conduct. As I read it, the pleading contains a number of the “unmistakeable hallmarks of querulous litigant behaviour” described by F.L. Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 15.

[20] The impression given by the pleading is reinforced when I read the plaintiff’s written submission. Ultimately he is aggrieved that he has never received the compensation that he believes he is entitled to from the WSIB. He seeks in this action to re-litigate a case he has already fought and lost and to revive and rehash grievances that go back to events, some of which occurred over 45 years ago.

[21] In coming to the conclusion that the present action should be dismissed, I have borne in mind that even a vexatious litigant can have a legitimate complaint. However, taking as generous a view as I can of the infelicities contained in Mr. Smith’s statement of claim, I am unable to discern, at its core, a legitimate, justiciable complaint.

[22] By reason of the foregoing, an order will go pursuant to Rule 2.1.01(1) dismissing Mr. Smith’s action.

[23] This endorsement is to be sent to the plaintiff and the lawyers for the defendants by regular mail under Rule 2.1.01(5) and by email to those for whom the court has email addresses. The defendants or whichever of them as they may agree, shall submit a draft order to the Registrar for signing and entry without the necessity to seek approval as to form and content by the plaintiff. The defendants shall then serve a copy of the entered order on the plaintiff and file proof of service with the Registrar.

[24] There will be no order as to costs.

Graeme Mew J. Date: 6 September 2018