Court File and Parties

COURT FILE NO.: CV-21-76781-CP (Hamilton) DATE: 2023-08-25 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

GREGORY TOOMBS, NORM RYDER, PATRICK JARDINE, DAVID HAMILTON, CHRISTOPHER SUMMERS, TERRY FEDORAK, ROD BARRETT, JENNIFER BAKER, BRUCE JUNKER, BLAINE GILBERTSON, KEN GRYSIUK, RICHARD LAST, DARREN SCHLAMB, CHRIS LAWSON, SARAH LAWSON, EUGENE LAHO, NORMAN TRAVERSY, DAVID CURTIS, PATRICIA O’CONNOR, GIUSEPPE MARCELLINO, JAMES ROLLO, ANDRE MARTIN, ARMAND DURELLE, GILLES MARTIN, GORDON WAYNNE SKINNER, AND PAUL TAYLOR. (On behalf of Canadians & others injured at work, while working in Canada) Lead Plaintiffs

AND:

WorkSafeBC Also known as the Workers Compensation Board of British Columbia Workers’ Compensation Appeal Tribunal of BC – WCATBC Alberta Workers Compensation Board – AWCB Alberta Appeals Commission – AAC Saskatchewan Workers Compensation Board – SWCB Saskatchewan Board Appeal Tribunal – SBAT Workers Compensation Board of Manitoba – WCBM The Appeal Commission of Manitoba – ACM Workplace Safety & Insurance Board – WSIB Also known as the Workers Compensation Board of Ontario Workplace Safety & Insurance Appeals Tribunal – WSIAT Also known as the Workers Compensation Appeals Tribunal of Ontario Commission des normes, de l'équité, de la santé et de la sécurité du travail – CNESST WorkSafeNB Also known as the Workers Compensation Board of New Brunswick New Brunswick Workers’ Compensation Appeals Tribunal – NBWCAT Workers Compensation Board of PEI – WCBPEI Workers’ Compensation Appeal Tribunal of PEI – WCATPEI Workers’ Compensation Board of Nova Scotia – WCBNS, Workers’ Compensation Appeal Tribunal of Nova Scotia – WCATNS Workplace Health, Safety and Compensation Commission – WHSCC, Also known as the Workers Compensation Board of Newfoundland & Labrador Workplace Health, Safety & Compensation Review Division – WHSCRD Yukon Workers’ Compensation Health and Safety Board – YWCHSB Also known as the Workers Compensation Board of Yukon Territory Yukon Workers’ Compensation Appeal Tribunal – YWCAT Northwest Territories Workers’ Safety and Compensation Commission – NWTWSCC Also known as the Workers Compensation Board of Northwest & Nunavut Territories NWT and Nunavut Workers' Compensation Appeals Tribunal – NWTNWCAT Defendants

BEFORE: The Honourable Justice M.J. Valente

SELF-REPRESENTED: Paul Taylor, Plaintiff

COUNSEL: Jean-Denis Bélec, counsel for the Defendant, Workplace Safety & Insurance Board

HEARD: Motion in Writing

CORRECTED DECISION: Under the heading Legal Principals [6], the cited reference has been corrected to read “…(see: Knights Village Non-Profit Homes Inc. v. Chartier, [2006] O.J. No. 4436 at para 16 )….”

Endorsement on Motion

Background

[1] This action was commenced pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 on August 16, 2021 (the ‘Action’) but has yet to be certified as a class proceeding and nor has a representative plaintiff been appointed. The Action claims general damages of $25 billion as well as punitive, aggravated, and exemplary damages of $20 billion for the wrongful denial or reduction of workers’ compensation benefits from the tribunals of the provinces and territories charged within the administration of workers’ compensation benefits within their respective jurisdictions.

[2] Paul Taylor (‘Taylor’) is one of several named plaintiffs.

[3] Taylor seeks leave of the court to bring an urgent motion, and should leave be granted, a declaration that the Ontario Workplace Safety & Insurance Board (‘WSIB’), one of the named defendants in the Action, is in contempt of court by failing to finance his healthcare. Taylor also seeks an order compelling the WSIB to provide him with healthcare as well as monetary compensation (the ‘Taylor Motion’).

[4] The motion before me is initiated by the WSIB pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The WSIB requests that the court dismiss the Taylor Motion by reason that it appears on its face to be frivolous, vexatious, or otherwise an abuse of process of the court in accordance with the provisions of Rule 2.1.01(1).

Facts

[5] I have no affidavit evidence before me. I have only Taylor’s notice of motion which sets out in addition to the relief sought, the grounds for the Taylor Motion. These grounds include a number of factual allegations including the following: (i) prior to 1997 Taylor suffered numerous workplace injuries from several work accidents; (ii) because of Taylor’s workplace injuries, WSIB funded certain of his treatments and medications; and (iii) recently WSIB terminated its funding.

Legal Principles

[6] As Myers J. points out in Gao v Ontario WSIB, 2014 ONSC 6100 (‘Gao No.1’), Rule 2.1 is a statutory response to a longstanding and significant problem. Vexatious proceedings can cause very substantial costs to be incurred by the responding party (at para 6). They also cause inefficient and inappropriate utilization of court resources (see: Knights Village Non-Profit Homes Inc. v. Chartier, [2006] O.J. No. 4436 at para 16). The legislature enacted Rule 2.1 in response to the Supreme Court of Canada’s recognition that a “cultural shift or new ways of managing civil claims are required to provide fair processes for resolving civil disputes efficiently, affordably, and proportionately (see: Hryniak v. Mauldin, 2014 SCC 7).

[7] Rule 2.1 provides a new approach to managing potentially frivolous and vexatious claims. It provides a summary process to determine if a proceeding ought to be dismissed because it is either frivolous, vexatious or an abuse of process. Rule 2.1 is not, however, meant to apply to close calls. It is not a short form of summary judgment. But as Justice Myers comments in Gao No. 1, Rule 2.1 is nonetheless to be robustly interpreted and applied: “rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “cultural shift” mandated by the Supreme Court of Canada” (at para 9).

[8] Black’s Law-Dictionary defines “frivolous” as “lacking a legal basis or legal merit; not serious, not reasonably purposeful”.

[9] In Foy v. Foy (No. 2) (1979), the Ontario Court of Appeal observed that “in many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable grounds. As a result, the proceedings were found to constitute an abuse of process of the Court” (at para 226).

[10] Finally, in Canam Enterprise Inc. v. Coles, 51 OR. (3d) 481 (Ont. C.A.), the Court of Appeal described abuse of process as an intangible principle that engages the power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party litigant or that would in some way bring the administrative of justice into disrepute (at para 31).

Position of the Parties and Analysis

[11] Taylor brings his motion for a finding of contempt and related relief pursuant to Rule 60.11. This Rule contemplates that (i) an order has been made requiring a person to do an act or to abstain from doing an act, (ii) the order has been breached and (iii) enforcement of the order is required.

[12] In his written submissions in response to the Rule 2.1 motion, Taylor submits that the WSIB has committed the act of “intimidation and harassment of a litigant and witness during a legal proceeding against the harasser”, demanded irrelevant information and ultimately unlawfully suspended its financial support of his healthcare. While I make no findings with respect to these allegations against the WSIB, Taylor’s argument fails to account for one fatal flaw in his position; that is, as at this date there is no order of the court requiring the WSIB to do anything other than to comply with the court-imposed timetable for the delivery and exchange of materials with respect to the pending Rule 15 motion. In the absence of an order requiring the WSIB to do or abstain from doing any of the alleged wrongs, there is no basis for this court to entertain a finding of contempt against the WSIB. As a result, the Taylor Motion must fail.

[13] Furthermore, it is my opinion that in any event this court has no jurisdiction to order the relief Taylor seeks. Section 14 of the Workplace Compensation Act, R.S.O. 1990, c. W. 11 (‘WCA’) and section 26(1) of the Workplace Safety and Insurance Act, 1997, S.C. 1997, c. 16, Sched A (‘WSIA’) provide that no action lies for recovery under the insurance plan and all compensation claims shall be determined by the tribunal. In addition, sections 50(5) and 50(6) of the WCA and sections 33(6) and (7) of the WSIA further provide that the tribunal shall determine all questions concerning the necessity, appropriateness, and sufficiency of healthcare to be provided to a worker. Finally, section 69 of the WCA and section 118 of the current legislation stipulate that the tribunal has “exclusive jurisdiction” to examine, hear and decide all matters relative to a worker’s entitlement to healthcare subject to limited exemptions, none of which apply to the facts this case in my view.

[14] In making this finding, I acknowledge that Taylor’s injuries were sustained prior to the WSIB coming into force in January 1, 1998, and the relevant provisions of the former legislation may be applicable in his case.

[15] Regardless of which legislation governs, as noted above the pertinent provisions of the WCA and WSIA mirror each other.

[16] In his submission, Taylor disputes the argument advanced by the WSIB, and adopted by me, that this court lacks jurisdiction to grant the relief he is seeking, I do not, however, accept Taylor’s argument that this court may assume jurisdiction to remedy a perceived wrong of the WSIB when it is alleged to have acted “inhumanely” and has no urgent appeal process.

[17] I also reject Taylor’s submission that this court can assume jurisdiction to grant relief based on the suggestion that the legislation was never intended to deprive workers of their right to compensation but to limit powerful employers. In my view, Taylor’s proffered purpose of the legislation is misguided, and in any event, irrelevant to the issue of jurisdiction.

[18] Having found that the Taylor Motion was instituted without any reasonable ground, lacks merit, and is bound to fail, I also find that the Taylor Motion is both frivolous and vexatious. I further find that in these circumstances where the Taylor Motion is bound to fail, that it would be manifestly unfair to WSIB to permit the motion to proceed, and in addition, an inappropriate use of scarce court resources. In other words, the Taylor Motion is an abuse of process.

Disposition

[19] For all the above reasons, the Rule 2.1.01 motion of the WSIB is allowed and the Taylor Motion is dismissed. The WSIB shall also have its costs of this motion fixed in the amount of $250 inclusive of disbursements and HST.

[20] This endorsement is to be sent to Taylor and the WSIB by regular mail under Rule 2.1.01(5) by the Registrar. It will otherwise be emailed by my judicial assistant to those parties to the Action for whom the court has email addresses.

[21] Finally, I note that the case conference that was scheduled for July 21, 2023, via zoom, did not proceed because of technical difficulties experienced by the court. The sole purpose of that virtual conference was to schedule a date to argue the Taylor Motion if the Rule 2.1 motion was dismissed. Given my ruling in that respect, there is no need to schedule a second case conference for scheduling purposes.

M.J. Valente J. Released: August 25, 2023

COURT FILE NO.: CV-21-76781-CP (Hamilton) DATE: 2023-08-25 ONTARIO SUPERIOR COURT OF JUSTICE Toombs et al Plaintiffs – and – WorkSafeBC et al Defendants Endorsement M.J. Valente J. Released: August 25, 2023