JEAN CLAUDE MBONYIMANA APPLICANT - v. –, 2023 SKKB 9

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 9 Date: 2023 01 12 Docket: QBG-RG-01200-2021 Judicial Centre: Regina BETWEEN: JEAN CLAUDE MBONYIMANA APPLICANT - and – THE SASKATCHEWAN WORKERS’ COMPENSATION BOARD and KELLY PANTELUK CONSTRUCTION LTD. RESPONDENTS Counsel: Jean Claude Mbonyimana the applicant, on his own behalf Allison L. Graham for the respondent, The Saskatchewan Workers’ Compensation Board James S. Ehmann, K.C. for the respondent, Kelly Panteluk Construction Ltd. ___________________________________________________________________________ FIAT TURCOTTE J.

January 12, 2023 ___________________________________________________________________________ Introduction [ 1 ] On June 4, 2021, the applicant, Jean Claude Mbonyimana, filed an Originating Application for Judicial Review [Originating Application] under Rule 15-49 of The Queen’s Bench Rules to set aside the decision of the Workers’ Compensation Board Appeal Tribunal [Board] dated December 6, 2018. Mr. Mbonyimana seeks the restoration of his wage loss benefits and vocational rehabilitation. The decision herein does not address the substantive merits of Mr.

Mbonyimana’s judicial review application. [ 2 ] Rather, the decision herein addresses the application brought by Kelly Panteluk Construction Ltd. [KPCL], Mr. Mbonyimana’s employer at the time of his work-related injury. KPCL applies pursuant to Rule 3-56(3) of The Queen’s Bench Rules that the Court refuse to grant all remedies sought by Mr. Mbonyimana in his Originating Application with costs to KPCL on the basis of

undue delay and that granting an order in favour of the Originating Application will be detrimental to good administration andsubstantially prejudicial to the interests of KPCL. [3] The co-respondent, the Saskatchewan Workers’ Compensation Board [WCB], takes no position on KPCL’sapplication. [4] For the reasons that follow, KPCL’s application is dismissed with costs in favour of Mr. Mbonyimana, fixed inthe amount of $250 payable by KPCL in any event of the cause.

Preliminary Issues Jurisdiction to hear delay application in advance of the Originating Application [5] It was agreed between the parties that KPCL’s application could proceed in advance of consideration of thesubstantive merits of the judicial review application itself. [6] I determined it was appropriate to proceed in this fashion having regard for the foundational principles of TheQueen’s Bench Rules set out in Rule 1-3 and the ability of the Court to make any order with respect to its practice or procedure toadvance the intentions of Rule 1-3.

Here, bifurcating and determining the delay issue in advance of consideration of the substantivemerits of the issues raised in the Originating Application reduced the need for translation of the entire Record of Proceedings to a discreetset of documents agreed by the parties to be relevant to the delay application.

The parties nevertheless agreed the entire Record ofProceedings remained available for the parties’ and the Court’s consideration. [7] There is support in the jurisprudence, as noted by counsel for KPCL in its brief of law, that the issue of delayis often treated as a preliminary issue in many judicial review applications (see for example: Breton v Battlefords Union Hospital Board(1992), (SK KB), 6 Admin LR (2d) 11 (Sask QB); Warner v Saskatchewan (Workers’ Compensation Board), 2007SKQB 76, 292 Sask R 283 [Warner]; and Holowachuk v Workers’ Compensation Board of Saskatchewan, 2009 SKQB 74, 329 Sask R131 [Holowachuk].

In such cases, where delay was determined to be undue, the substantive merits of the judicial review application werenot then considered. Irregularity of Applicant’s Materials [8] On March 22, 2022, in response to KPCL’s application, Mr. Mbonyimana filed a written response and a seriesof seven email communications between himself, the WCB, the Office of the Workers’ Advocate [OWA], the WCB’s Fair PracticesOffice, and Ombudsman Saskatchewan without exhibiting the same to an affidavit. Counsel for KPCL raised an issue with Mr.Mbonyimana’s unsworn submissions and sought to have Mr.

Mbonyimana file an affidavit in proper form. [9] Mr. Mbonyimana then filed a sworn affidavit on March 25, 2022, which referenced the email communicationsas “accompanying” his affidavit, but without actually exhibiting the same in proper form bearing the jurat of the commissioner of oathsin Quebec before whom he swore his affidavit. Counsel for KPCL acknowledged and waived the irregularity with respect to the sameand agreed the email communications could be considered as evidence by me.

Counsel for the WCB took no position on anyirregularities with the affidavits. [10] KPCL subsequently filed the reply affidavit of Mary Panteluk, sworn April 7, 2022, attaching as exhibits to thesame the aforementioned seven email communications between Mr.

Mbonyimana, the WCB, the OWA, the Fair Practices Office andOmbudsman Saskatchewan, along with photocopies of two pages from WCB’s website relating to appeals by a worker from decisions ofthe WCB on injury claims. [11] The parties consented to the matter being argued before me on the basis of the affidavit evidence, documentsand materials filed, including the eight volumes of materials filed by the WCB comprising the record of proceedings before the WCB. Background Facts [12] As the decision herein does not address the substantive merits of Mr. Mbonyimana’s judicial review application,I will restrict my

summary of the factual background to those facts bearing on the issue of delay. [13] Mr. Mbonyimana is a self-representing litigant. He does not have the financial means to afford a lawyer. Mr.Mbonyimana came to Canada as a refugee from Rwanda. He speaks French as a second language, English is his third language. In hisdealings with the WCB, the OWA, the Fair Practices Office, and the Ombudsman, Mr. Mbonyimana indicated he has relied on theGoogle Translate web platform to translate his emails and other communications. [14] KPCL is a family-owned Saskatchewan company with its head office in Estevan.

It operates in the heavyconstruction industry with its primary business relating to moving earth and other construction materials. Much of its work is seasonaland spread out across Saskatchewan. [15] Mr. Mbonyimana began working for KPCL on May 16, 2013. [16] Mr. Mbonyimana injured his left calf muscle jumping into a pipe hole at work on September 24, 2013. At thetime he did not think the injury was that serious. However, over the next two weeks the pain in his leg progressively increased, such thathe reported the injury to KPCL on October 8, 2013. The injury was reported to the WCB on February 13, 2014.

By that time, Mr.Mbonyimana had moved to Quebec and was receiving continuing medical treatment for the injury. Following its review, the WCBgranted Mr. Mbonyimana medical coverage and wage loss benefits. [17] Mr. Mbonyimana’s wage loss benefits from the WCB were terminated on November 10, 2017. His medical

coverage was continued. The termination of his wage loss benefits was based on Mr. Mbonyimana refusing an accommodated work position from KPCL as an administrative assistant at KPCL’s head office in Estevan with no wage loss. Mr. Mbonyimana disputed that he was qualified for the accommodated work position, due to his limited English language skills. With the help of the OWA, Mr. Mbonyimana appealed WCB’s decision on February 7, 2018. His appeal was denied. [ 18 ] With the assistance of the OWA, Mr. Mbonyimana appealed WCB’s decision to the Board. On December 6, 2018, a majority of the Board denied Mr.

Mbonyimana’s appeal. One Board member dissented and would have allowed the appeal largely for the reasons argued by Mr. Mbonyimana. [ 19 ] On January 27, 2019, Mr. Mbonyimana asked the Board to reconsider its decision. He also requested that if the Board was not prepared to reconsider its decision, that the Board provide him with the information as to which court he could take his file to. He indicated he was prepared to pursue his claim up to the Supreme Court of Canada. [ 20 ] The request for reconsideration was denied by the Board on January 31, 2019, on the ground that Mr.

Mbonyimana had not provided any new material of substance upon which the Board could rescind, alter or amend its decision of December 6, 2018. [ 21 ] On February 16, 2019, Mr. Mbonyimana emailed the Fair Practices Office about the Board’s decision seeking its intervention on his behalf, or, alternatively, to advise him before which court (“Tribunal”) he could seek redress, indicating once again his readiness to pursue the matter to the Supreme Court of Canada. In an email response dated February 19, 2019, the Fair Practices Office told Mr. Mbonyimana that it was not in a position to intervene on his behalf.

They suggested he follow up with his lawyer through the OWA or, alternatively, make a complaint to the provincial Ombudsman. [ 22 ] Mr. Mbonyimana followed up with the OWA as to further steps he could take to challenge the Board’s decision. In his email response to the Fair Practices Office, dated February 23, 2019, Mr. Mbonyimana indicated the OWA advised it could provide no further assistance and had closed his file. Accordingly, Mr. Mbonyimana indicated he would seek the assistance of the Ombudsman based on the earlier advice from the Fair Practices Office in its email of February 19, 2019. [ 23 ] Mr.

Mbonyimana filed his complaint with the Ombudsman on February 23, 2019, asking that office to review the Board’s decision of December 6, 2018 and to require the reinstatement of his wage loss benefits, vocational training and employment accommodation. Alternatively, he asked the Ombudsman to provide him with the information as to which court he could challenge the decision, repeating his preparedness to pursue his claim to the Supreme Court of Canada. [ 24 ] The Ombudsman concluded its review and made recommendations to the Board in February 2020, which the Board subsequently rejected on March 24, 2020.

By letter dated June 30, 2020, the Ombudsman communicated with Mr. Mbonyimana that the Board did not accept its recommendations. [ 25 ] Mr. Mbonyimana contacted the Fair Practices Office by email again on October 14, 2020, seeking further direction to challenge the Board’s decision. On November 27, 2020, Mr. Mbonyimana was advised by the Fair Practices Office that he could seek to challenge the Board’s decision in the “Court of Queen’s Bench”. Mr. Mbonyimana sought further information from the Fair Practices Office as to the location of the “Queen’s Bench”.

By email dated December 3, 2020, the Fair Practices Office provided Mr. Mbonyimana with the link to the Saskatchewan Law Courts website (www.sasklawcourts.ca). That website provides information regarding the Provincial Court of Saskatchewan, the Court of King’s Bench for Saskatchewan and the Court of Appeal for Saskatchewan, including locations, sittings, practice directions and rules of those three courts. Mr.

Mbonyimana replied to and acknowledged receipt of that email on December 15, 2020. [ 26 ] Despite the advice received from the Fair Practices Office to pursue his challenge of the Board’s decision with this Court, Mr. Mbonyimana did not take immediate steps in that regard. On February 14, 2021, he sent another email to the OWA inquiring as to whether the OWA could assist him in his judicial review application. The OWA responded to him on February 17, 2021, indicating it was unable to assist him and suggested he obtain legal advice either through Legal Aid in Quebec or Justice Pro Bono Quebec.

In a subsequent email dated February 22, 2021, the OWA provided Mr. Mbonyimana with a copy of the Board’s decision, a

summary of his file, links to WCB forms for him to request additional documentation from the WCB, the address for this Court in Regina and the link to the Saskatchewan Law Courts’ website. [ 27 ] Although Mr. Mbonyimana acknowledged receipt of the additional information from the OWA on March 2, 2021, he did not at that time pursue his application for judicial review with this Court. [ 28 ] On May 12, 2021, Mr.

Mbonyimana once again communicated with the OWA, but with a different advocate in that Office, attaching the “decision” of the Ombudsman and inquiring as to whether he had to pursue his claim against the Board with this Court or the Saskatchewan Court of Appeal. By response email dated May 12, 2021, the OWA told Mr. Mbonyimana he had to proceed with his claim in this Court. The OWA also advised Mr. Mbonyimana to consult with a lawyer and included an internet link to contact information regarding French speaking lawyers in Saskatchewan. [ 29 ] On June 4, 2021, Mr.

Mbonyimana filed his Originating Application for judicial review of the Board’s decision in Form 3-49 with a return date of October 7, 2021, along with his notice in Form 3-57 to compel the record of proceedings. His application was irregular in that it did not contain the particulars required by Rule 3-49; he did not file a proper affidavit setting out his evidence in respect of the application; and he did not file an affidavit of service indicating service of his application and supporting materials complied with Rules 3-50 and 3-56. Counsel for WCB alerted Mr.

Mbonyimana to these irregularities in a letter dated October 1, 2021 seeking an adjournment from the October 7, 2021 hearing date. Although Mr. Mbonyimana consented to the adjournment, it does not appear from the court record that the deficiencies in his materials were corrected, nor does it appear that an objection with respect to the same was renewed by counsel for the WCB. [ 30 ] The matter came before a judge of this Court on November 4, 2021 for management in a case conference under General Application Practice Directive #9. Mr.

Mbonyimana was directed to serve KPCL, as an interested party, with a copy of the

application and supporting materials. Although a hearing date was directed to be set, that direction was subsequently vacated with the consent of the parties after KPCL was served. [ 31 ] On December 1, 2021, WCB filed the Record of Proceedings, consisting of eight volumes of documents. [ 32 ] A new case conference date was set for December 16, 2021. The matter came before me on that date. With the consent of the parties, KPCL was added as a party to this proceeding.

The case conference was adjourned to January 14, 2022 to allow KPCL to review the file and instruct counsel. [ 33 ] On January 14, 2022, KPCL indicated its intention to bring the within court application to deny any relief to Mr. Mbonyimana on the grounds of undue delay pursuant to Rule 3-56(3). Subsequently, additional case conferences were held under General Application Practice Directive #9, including to address timelines to obtain translation of materials and documents the parties agreed were relevant to this application, with argument eventually proceeding before me on the merits of the delay application.

Issue [ 34 ] The only issue on this application is whether pursuant to Rule 3-56(3), the Court should refuse to grant all remedies sought by Mr. Mbonyimana in his Originating Application with costs to KPCL. Position of the Parties KPCL [ 35 ] KPCL argues that Mr. Mbonyimana’s application should be dismissed for undue delay and that granting an order in favour of the Originating Application will be detrimental to good administration and substantially prejudicial to the interests of KPCL. KPCL argues Mr.

Mbonyimana has provided no reasonable explanation for the approximate 30-month delay between the Board’s decision and Mr. Mbonyimana bringing his application. [ 36 ] Moreover, KPCL suggests that Mr. Mbonyimana consulting the Ombudsman is not a sufficient reason for the delay as nothing otherwise prevented Mr. Mbonyimana from bringing his application soon after the Board’s decision. In that regard, KPCL relies on Warner where such a determination was made by Currie J. Additionally, KPCL suggests that Mr.

Mbonyimana’s delay in bringing his application is contrary to good administration, certainty and finality of proceedings. [ 37 ] Finally, KPCL argues that allowing Mr. Mbonyimana’s application would prejudice KPCL because it would cause uncertainty and negatively impact their WCB premiums and experience ratings should Mr. Mbonyimana be successful. Mr. Mbonyimana [ 38 ] Mr. Mbonyimana asserts that his application for judicial review should not be dismissed. He suggests that the delay is not undue because the proceedings never ceased, and he continually attempted to get his matter reviewed. Mr.

Mbonyimana points out in that regard that the WCB’s online resources state that an employee can ask for their WCB decision to be reviewed at any time and that there is no time limit for review in Saskatchewan. [ 39 ] Mr. Mbonyimana contends that the Board, the Fair Practices Office and the OWA contributed to the delay by not informing him at an earlier date that he could apply for judicial review to this Court if he was unhappy with the Board’s decision, despite his requests that the Board advise him as to which court he should otherwise make his claim. Mr.

Mbonyimana asserts that had he known making a judicial review application was his only option, he would have pursued that course of action immediately. [ 40 ] Furthermore, Mr. Mbonyimana argues that good administration requires courts to consider that unsophisticated parties may get lost when dealing with complex legal issues and processes, and that he himself has a limited understanding of the Saskatchewan judicial system. [ 41 ] Finally, Mr.

Mbonyimana posits that the purpose of The Queen’s Bench Rules , as demonstrated by the Foundational Rules under Rule 1-3, is to ensure that matters are dealt with in the most expeditious and cost-effective way possible. He argues that WCB failed to follow the spirit of the Rules by refusing to tell him where he could bring his claim in a timely manner for judicial review of the Board’s decision. Workers’ Compensation Board [ 42 ] As noted above, the WCB took no position on the delay application and filed no affidavit evidence in respect of the same.

However, during oral argument before me, counsel for the WCB highlighted page 02432 from Volume VII of the Record of Proceedings, an email from Mr. Mbonyimana to Jeanine Epp, a WCB Vocational Rehabilitation Specialist, dated March 17, 2019. Ms. Epp was formerly Mr. Mbonyimana’s case manager. Counsel for the WCB suggested this email was an indication from Mr. Mbonyimana that he was aware as of March 17, 2019 that he could apply to the court to challenge decisions of the Board. [ 43 ] During the oral hearing, I queried whether Mr.

Mbonyimana’s email of March 17, 2019 related to the decision of the Board dated January 31, 2019 not to reconsider its decision of December 6, 2018 or to the appeal of the determination by Ms. Epp on June 22, 2018 of the percentage of Mr. Mbonyimana’s Permanent Functional Impairment [PFI], having regard for the documents in relation to that appeal found at pages 02431 to 02437 and 02447 to 02451 in Volume VII of the Record of Proceedings. Sandwiched between those documents at pages 02438 to 02444 in Volume VII of the Record of Proceedings are documents in relation to Mr.

Mbonyimana’s request that the Board reconsider its decision of December 6, 2018, and correspondence from the WCB to Injury Solutions Inc. in relation to the percentage of the PFI appeal at pages 024445 to 02446. Counsel for the WCB was not able to provide a

definitive answer to my query. [44] Nevertheless, counsel for KPCL joined in this argument, indicating that delay for the purposes of thisapplication should be calculated minimally from March 17, 2019, based on the document at page 024432 of the Record of Proceedings. [45] After the close of the chambers hearing, counsel for KPCL filed a letter with the Court to reiterate this point. Iunderstood the argument during the oral hearing. It was not necessary for that letter to be filed, and I have not considered it in mydecision herein.

The filing of such a letter, which seeks to bolster the position of a litigant after the close of a hearing while a decision isunder reserve, without first seeking leave of the Court, is not appropriate (see: Yurchak v Yurchak, 2000 SKQB 213, 192 Sask R 312, andHamel v Hamel, 2000 SKQB 263, 194 Sask R 194). [46] I will address the contention regarding the significance of the email from Mr. Mbonyimana to Ms. Epp at page02432 of the Record of Proceedings in my analysis which follows.

Analysis [47] Rule 3-56(3) of The Queen’s Bench Rules states: 3-56(3) … if there has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if theorder: (

a) would be likely to cause substantial hardship or substantially prejudice the rights of any person; or (

b) would be detrimental to good administration. [48] In LaBrash v Saskatchewan Veterinary Medical Association, 2017 SKQB 267 [LaBrash], Smith J. outlined theapplicable principles to a delay application under Rule 3-56 at paras. 62 to 65 as follows: [62] Prior to the 2013 revision of The Queen’s Bench Rules delay in making an application for judicial review was dealt with underRule 675 of the former Queen’s Bench Rules which stated: 675 Subject to any statutory provision limiting the time in which an application for judicial review may be made, where there has beenundue delay in making an application, the court may refuse to grant any relief sought if the order would be likely to cause substantialhardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

The rules are similar enough that jurisprudence under former Rule 675 can be used to interpret Rule 3-56(3) (Risseeuw v SaskatchewanCollege of Psychologists, 2017 SKQB 8, [2017] 7 WWR 797), under appeal on other grounds [Risseeuw]; Neva R. McKeague, TheQueen’s Bench Rules of Saskatchewan: Annotated 4th ed (Regina: Law Society of Saskatchewan Libraries, 2013). [63] The leading authority on delay is Henry v Saskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) [Henry].

Chief Justice Bayda identified a two-stage analysis for former Rule 675 (now Rule 3-57): 70 The Rule requires a two-staged approach. The first stage contemplates a determination whether the delay in “making the application”is “undue”. It is important to note that it is the “making” as opposed to the “hearing” of the application that is governed by the Rule. It isimportant as well to resolve what is meant by “undue”.

In my view, the term embraces two elements: the first is the actual lapse of time(measured in days, months and years) between the making of the decision requested to be reviewed and the making of the applicationrequesting the review. The second is an assessment of the reasonableness of the lapse of time having regard to such matters as theapplicant’s circumstances; the nature of the legal problems involved; the conduct, acquiescence, and consent of the opposing party;negotiations toward settlement of the dispute (the list is not exhaustive).

This second element is often summarized in the expression“explanation for the delay”. 71 The second stage is engaged only if at the first stage the delay is found to be “undue”. The second stage requires a determinationwhether the order sought by the applicant would result in one or more of three eventualities (

i) likely substantial hardship to any person,(ii) likely substantial prejudice to the rights of any person and (iii) detriment to good administration. If one or more of those results is aptto occur, then the judge is empowered to refuse the relief sought.

On the other hand, if none of the results is apt to occur the judgewould be justified in granting the order even though the delay was undue. [64] The Saskatchewan Court of Appeal recently reaffirmed the authority of Henry in Saskatchewan (Workers Compensation Board) v Gjerde, 2016 SKCA 30, 395 DLR (4th) 331 [Gjerde]: 28 Rule 3-56(3) gives a judge discretion to determine whether an application for judicial review should be refused on the basis of unduedelay.

Such a decision is entitled to deference and an appellate court should only interfere if there has been an abuse of that discretion,that is: the judge erred in principle, disregarded a material matter of fact, or failed to act judicially or the result is “so plainly wrong as toamount to an injustice and invite intervention on that basis” (see Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119;and Royal Bank of Canada v Anderson, 2008 SKCA 153 at para 10, 314 Sask R 215). 29 The law pertaining to undue delay in bringing applications for judicial review was considered by this Court in Henry v Saskatchewan(Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) at para 70 [Henry].

In that case,Bayda C.J.S. concluded a two-step analysis should be employed when deciding such applications. The first step of the analysis requiresa determination of whether the delay is “undue.” There are two aspects to that question, namely (

i) the actual amount of time that haselapsed between the making of the decision to be reviewed and the initiation of the application for judicial review, and (ii) thereasonableness of the delay, which focuses on the explanation(

s) proffered for it. If the delay is found to be “undue,” then the second

step of the analysis is engaged, and the judge must determine whether the order sought is likely to cause substantial hardship orsubstantial prejudice to the rights of any person or is detrimental to good administration.

If one of those three eventualities exists, then ajudge may exercise his or her discretion and refuse the application. [65] The decision in Henry and much of the jurisprudence relying thereon is factually distinct from the circumstances before the Court.As such, though the general principles continue to be relevant and binding, the Court must appropriately acknowledge distinguishingcircumstances. [49] More recently, in Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9, 437 DLR (4th) 681[Risseeuw], and Amalgamated Transit Union, Local 615 v Saskatoon (City), 2021 SKCA 93 [Amalgamated Transit], the Court of Appealconfirmed the continuing applicability of Henry v Saskatchewan (Workers’ Compensation Board) (1999), (SK CA),172 DLR (4th) 73 (Sask CA) [Henry], a two-stage analysis for assessing the issue of delay in a judicial review application underRule 3-56(3).

Further, as the Court noted in Amalgamated Transit, although Rule 3-56(3) does not prescribe a time limit for the bringingof a judicial review application, “…(t)hey are subject to the limits of reason as set out in the jurisprudence surrounding Rule 3-56(3)”.Thus, regard may be had for other cases in considering the parameters of what constitutes undue delay. [50] In Warner, the delay of over four years from the date of the Board’s decision to the date Mr. Warner filed hisjudicial review application was determined to be undue.

In Warner, Currie J. reviewed cases where delays ranging from 13 months totwo and one-half years were found to be undue (Warner para 8). In LaBrash, Smith J. reviewed cases where the delay was found to beundue in as few as 13 months (LaBrash at para 71). In Holowachuk, the approximate two-year delay was found to be undue.

In Risseeuw,a delay of just under two years was found to be undue and in Amalgamated Transit the delay of 1,155 days to seek reconsideration of theLabour Relations Board’s [LRB] decision and over four years to seek judicial review of the same, (which was over one year and threemonths from a decision of the Court of Appeal upholding the LRB’s decision) were found to be undue. [51] However, the delay in Henry was 34.5 months, 22.5 of which were found to be reasonable. The remaining 12-month delay was not found to be undue.

Further, in Saskatchewan (Workers Compensation Board) v Gjerde, 2016 SKCA 30, 395 DLR(4th) 331 [Gjerde], the hearing judge determined the delay of 44 months was not undue, having regard for reasonableness factors, buteven if it were, the Court held there would be no hardship or prejudice to the board. On appeal, the Court of Appeal did not disturb thosefindings. [52] Henry dictates that when assessing whether the delay in making an application for judicial review is undue, theCourt must first consider the actual lapse of time and the reasonableness of the delay.

When assessing reasonableness, considerationshould be given to the applicant’s circumstances, the nature of the legal problems involved, the conduct, acquiescence, and consent ofthe opposing party, and negotiations towards settlement. If the delay is found to be undue, the Court should move to the second step ofassessing whether granting the application would result in a likely substantial hardship or substantial prejudice to the rights of anyperson, or a detriment to the good administration of justice.

Although, as pointed out above, regard may be had for other cases to assessthe “limits of reason” in addressing the issue of delay, each case must be determined based on its own distinguishing circumstancesbearing in mind the Henry two-stage analysis and the jurisprudence surrounding Rule 3-56(3). Is the delay undue? Actual Lapse in Time [53] In Mr. Mbonyimana’s case, the actual lapse in time between the Board’s decision on December 6, 2018 and Mr.Mbonyimana filing his application for judicial review on June 4, 2021 was approximately 31 months.

This delay should be narrowed byat least two months, to January 31, 2019, as it was reasonable for Mr. Mbonyimana to follow the appeal process under The Workers’Compensation Act, 2013, SS 2013, c W-17.11 [Act], to ask the Board to review its decision (Warner, para 12). Reasonableness of Delay [54] The Court in Henry directs that an applicant’s circumstances should be taken into consideration.

In Gjerde, theCourt of Appeal found that the applicant’s impecuniosity was one factor in determining whether the delay was reasonable, and that thecomplexity of the issues, coupled with the fact that the applicant was unsophisticated and tried relentlessly to obtain legal advice, alsocontributed to the delay’s reasonableness. [55] Mr. Mbonyimana came to Canada as a refugee and speaks English as his third language. Mr. Mbonyimana’srefugee status and limited proficiency in English lend to a finding of Mr. Mbonyimana being considered as an unsophisticated litigant.Mr. Mbonyimana’s issues were complex.

Unlike the applicant in Holowachuk, Mr. Mbonyimana has failed to demonstrate he had theability to represent himself. Instead, he depended on the Board, the OWA, and the Fair Practices Office to guide him. [56] For the majority of his communications with the WCB, if not all of them, Mr. Mbonyimana required the use ofGoogle Translate to change his messages from French to English and to translate any response from English back to French. This addedcomplexity to the proceedings and, therefore, increased the amount of time it would have taken Mr.

Mbonyimana to understand andnavigate the appeals process, particularly considering the Board’s, the Fair Practices Office’s and the OWA’s communications with Mr.Mbonyimana were often only in English, requiring Mr. Mbonyimana to translate the same to French. [57] Mr. Mbonyimana also noted his financial circumstances were such that he could not afford to retain a lawyer.Mr. Mbonyimana had limited knowledge of the Saskatchewan judicial system and sought direction from the Board, the Fair PracticesOffice and the OWA.

He was directed to Legal Aid Quebec and ProBono Quebec, but those organizations were of no assistance to him. [58] Mr. Mbonyimana’s delay in bringing his application is explainable. Mr. Mbonyimana made multiple inquiries tothe WCB, through the Board, the OWA and the Fair Practices Office, about how and where he could have his matter reviewed. It isclear he formed the intention to challenge the decision and did his best to carry out that intention, though his ability to do so was limited.

[ 59 ] In the alternative to the Board reviewing its decision, Mr. Mbonyimana asked the Board for information as to which Court he should otherwise bring his claim. [ 60 ] In its letter dated January 31, 2019, the Board declined to review its decision and did not indicate to him the availability of applying to this Court to have the Board’s decision judicially reviewed. Rather, in its letter of January 31, 2019, the Board attached a copy of s. 20 of the Act , and emphasized the finality of its decision, without avenue of appeal, other than back to the Board for a review. [ 61 ]

Section 20 provides as follows: Jurisdiction 20

(1) The board has exclusive jurisdiction to examine, hear and determine: (

a) all matters and questions arising pursuant to this Act ; and (

b) any other matter with respect to which a power, authority or discretion is conferred on the board.

(2) Without limiting the generality of subsection (1), the board has exclusive jurisdiction to determine: (

a) whether any condition or death with respect to which compensation is claimed was caused by an injury; (

b) whether any injury has arisen out of or in the course of employment; (

c) the existence and degree of functional impairment to a worker resulting from an injury; (

d) the permanence of a functional impairment resulting from an injury; (

e) the degree of diminution of earning capacity resulting from an injury; (

f) the average earnings of a worker; (

g) the existence of the relationship of any member of the family of a worker and the degree of dependency; (

h) whether any industry or employer is within the scope of this Act and the class to which the industry or employer is assigned; and (

i) whether any worker is within the scope of this Act .

(3) The actions and proceedings of the board are final and conclusive.

(4) The board’s decisions and findings on all questions of fact and law are not open to question or review in any court, and any proceeding before the board must not be restrained by injunction, prohibition, mandamus, quo warranto , certiorari or other process or proceeding in any court or be removable by application for judicial review or otherwise into any court on any grounds.

(5) Notwithstanding subsections (3) and (4), the board may: (

a) reconsider any matter that it has dealt with; and (

b) rescind, alter or amend any decision or order it has made. [ 62 ] In its letter of January 31, 2019, the Board advised Mr. Mbonyimana as follows with respect to the ambit of the Board’s jurisdiction under s. 20 : … Pursuant to

Section 20 of the 2013 Act , the Tribunal has the exclusive jurisdiction to decide on matters put before the Tribunal.

Section 20 also confirms that the actions and proceedings of the Board (Tribunal) are final and conclusive. The Tribunal may also reconsider any matter it has dealt with and rescind, alter or amend any decision or order it has made. … [ 63 ] The information contained in the Board’s letter of January 31, 2019 is consistent with the appeals information contained in the two photocopied pages from the WCB’s website attached as Exhibits “H” and “I” to the reply affidavit of Mary Panteluk, sworn April 7, 2022.

Neither of those pages inform of the prospect of a judicial review application to this Court in respect of a decision made by the Board. This information available to him online suggesting that he could have the decision reviewed at any time and that there was no time limit in Saskatchewan for such review without reference to the potential of a judicial review application under The Queen’s Bench Rules , adds to the complexity of the proceedings. [ 64 ] The WCB scheme is a complex one to navigate. Hence the WCB offers additional resources to claimants through the OWA and the Fair Practices Office.

Nevertheless, neither of those offices assisted Mr. Mbonyimana in finding the pathway towards a judicial review application prior to November 27, 2020. These legal complexities, coupled with the ambiguity in avenues of appeal available to Mr. Mbonyimana, significantly contributed to, and explain, the delay. [ 65 ] In Henry , the Court held that the WCB effectively consented to the delay since they could have brought the matter back to court with three days’ notice. Here, the WCB contributed to the delay, if not consented to it. Had the Board instructed

Mr. Mbonyimana that to have his matter reviewed further he would have to make an application for judicial review to this Court, they would have expedited the process substantially. This is especially true given that Mr. Mbonyimana made it clear that he wanted the Board’s decision reviewed and sought information from the WCB regarding the court where he could bring his claim. As noted, the WCB takes no position on this delay application. [ 66 ] In its correspondence to Mr.

Mbonyimana, the Board emphasized that its prior decisions would not be rescinded, altered, or amended without new information that was contrary to the decision rendered, indicating as follows in that regard: … For evidence to be new, it must not have existed at the time your appeal was being decided or, if it did exist, you did not know about it and you would not have been able to find out if you had tried. This is called reasonable diligence. New evidence must be substantial, that is, have weight and support a different conclusion. It must also be material, that is, it must be relevant to the decision.

For example, a new medical opinion based on a newly introduced medical test might be “new” evidence, while the opinion of a new specialist confirming a medical opinion already on your file might not. [ 67 ] Mr. Mbonyimana then sought further advice from the Fair Practices Office and the OWA as to what other remedies he may have available to him, including advice as to which court he could bring a claim to challenge the Board’s decision. The OWA advised they were not in a position to assist him and had closed its file. The Fair Practices Office referred him to the Ombudsman. Mr.

Mbonyimana filed his complaint with the Ombudsman on February 23, 2019. [ 68 ] KPCL argues that, as in Warner , Mr. Mbonyimana referring the matter to the Ombudsman is not an excuse for the delay. Mr. Mbonyimana’s circumstances can be distinguished from those of the applicant in Warner since Mr. Mbonyimana was instructed to go to the Ombudsman by the Fair Practices Office. There is no indication in Warner as to why the applicant pursued a review through the Ombudsman, not just once but twice, during the over four years of delay. Here, the Fair Practices Office only suggested Mr.

Mbonyimana bring a claim in this Court on November 27, 2020 after the Board rejected the recommendations from the Ombudsman. Mr. Mbonyimana was only told to obtain legal counsel by the OWA on February 17, 2021. [ 69 ] Moreover, there is no evidence that in Mr.

Mbonyimana’s circumstances he should be expected to know that any delay in bringing his judicial review application could be detrimental to him, unlike the applicant in Risseeuw who did based on an earlier judicial review application she had brought challenging the Saskatchewan College of Psychologists’ decision not to grant her application to be registered (para. 10). [ 70 ] Finally, Mr. Mbonyimana’s case can be distinguished from Amalgamated Transit .

There, the applicant sought to relitigate a matter that had already been resolved through a reconsideration after the Court of Appeal had upheld the LRB’s decision. In the case at bar, Mr. Mbonyimana wishes to have his matter heard by the Court for the first time. [ 71 ] Despite his repeated requests to be advised which court he could bring a claim, neither the Board, the OWA nor the Ombudsman told Mr. Mbonyimana that he could bring an application for judicial review in this Court. The Fair Practices Office only gave him information about this Court on November 27, 2020. In that regard, Mr.

Mbonyimana’s requests to be advised of the court in which he could bring a claim, and/or his emails, dated February 23, 2019 to the Fair Practices Office and March 14, 2019 to Ms. Epp, do not assist KPCL’s argument that Mr. Mbonyimana knew by those dates that an avenue of judicial review existed through this Court. [ 72 ] In his email of February 23, 2019, Mr. Mbonyimana used the French word “Tribunal” which may actually be a reference to the Board. In his email of March 14, 2019, he used the French word “Cour”, which is a general reference to a court, not a specific reference to this Court.

No request was made to cross-examine Mr. Mbonyimana on his affidavit and supporting materials in respect of this application as to his prior knowledge of bringing a proceeding in this Court. [ 73 ] In his requests to the Board, the Fair Practices Office, and the Ombudsman, Mr. Mbonyimana was looking for direction to a specific court where he could bring his claim, including if that meant to the Supreme Court of Canada.

The manner in which he framed those requests is not indicative of his knowledge of the possibility of an application to this Court, nor that reasonable time constraints on such an application being brought could jeopardize his ability to seek judicial review of the Board’s decision. [ 74 ] Furthermore, Mr. Mbonyimana tried relentlessly to get the Board’s decision reviewed by a higher authority, to no avail.

He never quit trying to pursue his claim, seeking review by the Board, the Ombudsman and following up with the OWA and the Fair Practices Office for direction multiple times between the Board’s decision and commencing his application for judicial review. An applicant is required to exhaust all other options before applying for judicial review ( Galger v Saskatchewan (Workers’ Compensation Board) , 2005 SKQB 424 at paras 23-25 , 271 Sask R 178 ) . Clearly, Mr. Mbonyimana has done so. [ 75 ] Mr.

Mbonyimana suggests that had he known about the judicial review process, he would have brought his application immediately. Once he found out about the “Queen’s Bench” through the Fair Practices Office on November 27, 2020, Mr. Mbonyimana brought his application for judicial review within seven months to this Court. [ 76 ] Having regard for all the evidence and the analysis above, I find that Mr. Mbonyimana’s delay in bringing an application for judicial review is not undue.

In the event my determination regarding undue delay is found to be in error, I will continue my analysis of the second step of the test outlined in Henry . If the delay is undue, would allowing Mr. Mbonyimana’s application for judicial review likely create a substantial hardship or substantially prejudice the rights of any person, or be a detriment to good administration? [ 77 ] The WCB has not raised an issue of prejudice to it or detriment to good administration. [ 78 ] KPCL argues that Mr. Mbonyimana’s delay in bringing his judicial review application would prejudice it because if Mr.

Mbonyimana were successful, KPCL could incur significant WCB premiums and have their experience rating affected. KPCL further suggests that allowing Mr. Mbonyimana’s application would be contrary to the good administration of justice because

decision-makers deserve certainty and finality. Respectfully, I do not believe either of these arguments can stand. [ 79 ] KPCL’s argument that their WCB premiums and experience rating could be affected depends on Mr. Mbonyimana actually being successful in his claim. KPCL’s WCB premiums and experience rating will not change if Mr. Mbonyimana’s application for judicial review is allowed to proceed. Depending on the success of Mr.

Mbonyimana’s application for judicial review, of which I make no predetermination, KPCL may have other avenues under the Act and its regulations to seek relief from the WCB in respect of premium assessments impacting the class of employers it is in. There is no issue here as to any witnesses being unavailable as in LaBrash . No concern has been raised that any material information is missing or unavailable. The WCB has filed a Record of Proceedings.

Concerns have been raised as to the necessity of translating documents forming part of the Record of Proceedings, but the same can be managed through ongoing case conferences under General Application Practice Directive #9. Therefore, KPCL would not be substantially prejudiced or suffer substantial hardship merely by allowing Mr. Mbonyimana’s application for judicial review to proceed on its merits. [ 80 ] KPCL argues that allowing the application to proceed on its merits would be detrimental to the good administration of justice since there would be no finality or certainty to the proceedings.

This argument cannot stand on two grounds. First, the Board instructed Mr. Mbonyimana that they would rehear his case at any time. Moreover, the Act stipulates that the Board has the jurisdiction to reconsider any matter it has dealt with. Therefore, the legislature intended for WCB decisions to never be final. It is worth noting that this same argument was put forward in Gjerde and dismissed by the Court; there, the Court also found it uncompelling given the provisions of the Act . Second, the circumstances here are different from cases dealing with disciplinary matters, such as Risseeuw .

The Court of Appeal decided in Risseeuw that having the ability to review disciplinary hearings at any time would be difficult for professional regulators since there would never be certainty or finality to their decisions. Those cases are inapplicable to Mr. Mbonyimana’s case insofar as Mr. Mbonyimana seeks to have the Board’s decision upholding the decision of the appeal officer ending his wage loss benefits reviewed, not a sanction imposed by a regulatory body. [ 81 ] Accordingly, even if the delay had been found to be undue, allowing Mr.

Mbonyimana’s application would not likely result in a substantial hardship to or substantially prejudice the rights of any person, nor be detrimental to the good administration of justice. [ 82 ] Consequently, KPCL’s application is dismissed. Mr. Mbonyimana’s application for judicial review should be allowed to proceed to a determination on the merits. The Local Registrar shall convene a further case conference with the parties and me under General Practice Directive #9 to discuss next steps towards setting a hearing date for the substantive merits of Mr. Mbonyimana’s judicial review application. [ 83 ] Mr.

Mbonyimana has been successful on this application. With an eye on the Tariff of Costs, I order costs in his favour payable by KPCL in any event of the cause fixed in the sum of $250 given that he is a self-representing litigant. ______________________________J. F.N. TURCOTTE