) ) TORONTO STAR NEWSPAPERS LIMITED Applicant – v. –, 2017 ONSC 4537

CITATION : Toronto Star Newspapers Limited v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 DIVISIONAL COURT FILE NO.: 378/16 DATE: 20170726 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER, D. EDWARDS JJ. BETWEEN: ) ) TORONTO STAR NEWSPAPERS LIMITED Applicant – and – WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and ROBERT PEARSON Respondents ) ) ) ) ) ) ) ) )))) T. Weisberg and A. Cooke for the Applicant D. Revington and C.

Salomon-Labbé for the Respondent Workplace Safety and Insurance Appeals Tribunal Robert Pearson, not present ) ) ) HEARD at Toronto: June 23, 2017 D. EDWARDS J.: Overview [ 1 ] This is an application for judicial review of the May 5, 2016 decision of the Workplace Safety and Insurance Appeals Tribunal (“Tribunal”) that upheld the decision of the Workplace Safety and Insurance Board (“Board”) that found that on May 16, 2009 Robert Pearson was involuntarily terminated, and that there was no permanent suitable modified work available for him. s.43(1). It determined that Mr.

Pearson was entitled to loss of earning benefits (“LOE”) and a labour market re-entry assessment (“LMR”). s.42 [ 2 ] The Applicant argues that the Tribunal reached an unreasonable and “absurd” conclusion by finding that Robert Pearson was involuntarily terminated on May 16, 2009, when in fact he accepted a voluntary severance package. [ 3 ] For reasons that follow, I find that the Tribunal’s decision is unreasonable and is quashed. Background Facts [ 4 ] Mr. Pearson was a permanent part-time unionized employee of the Applicant, Toronto Star, when in June 2008 he injured his left shoulder at work.

He missed one shift of work, and then returned to work on modified duties until November 2008. Between November 2008 and May 2009, he was on medical leave for non-compensable reasons. [ 5 ] The Board found that Mr. Pearson was given an involuntary layoff notice and package on May 7, 2009, and that Mr. Pearson’s employment with the Toronto Star ended on May 16, 2009. [ 6 ] On May 20, 2009, the Board granted Mr. Pearson LOE benefits to last until an LMR assessment or his medical recovery. However, on June 3, 2009 Mr.

Pearson informed the Board that he did not want benefits at that time as he was off work for non- compensable reasons, so the benefits were rescinded. [ 7 ] In October 2009 Mr. Pearson advised the Board that he was having surgery on his left shoulder. After surgery Mr. Pearson was ultimately granted LOE and health care benefits as a result of his injury which had resulted in a permanent impairment. [ 8 ] The Board denied the Applicant’s appeals on September 23, 2010, May 13, 2011, and October 29, 2012. The Applicant then appealed to the Tribunal.

The Hearing before the Tribunal [9] The hearing before the Tribunal was postponed to January 12, 2016. On January 7, 2016, the Applicant was advised that Mr.Pearson would not be participating at the appeal. Because of Mr. Pearson’s absence from the hearing, the Applicant asked that anegative inference be drawn against Mr. Pearson. This was rejected by the Tribunal. [10] At the hearing, the sole witness was Ms. Broderick, Manager of Health and Safety for the Applicant. [11] Ms.

Broderick testified that, because of an anticipated loss of business, the Applicant developed, in consultation with its union, aplan to reduce staff that involved an involuntary layoff, as well as a voluntary severance package. Mr. Pearson was initially marked forinvoluntary layoff based upon his low seniority. The Applicant sent him a letter dated May 7, 2009, advising him that his effectiveinvoluntary layoff date would be May 16, 2009. [12] Ms. Broderick testified that between May 7, 2009 and May 27, 2009 Mr.

Pearson’s status changed from involuntary to voluntarylayoff, because the anticipated loss of a printing contract did not occur, and there was a higher than anticipated election of the voluntaryseverance package by other employees. Since the Applicant’s objective was to reduce its employees by a certain number, as employeeselected voluntary severance, others in the involuntary layoff category moved into the voluntary severance category. [13] She also said that in May 2009, Mr. Pearson was not working for non-compensable reasons, and thus was not in attendance at theworkplace.

That increased the difficulties in dealing with him and thus delayed matters. [14] Ms. Broderick testified that after Mr. Pearson was advised that he was no longer on the involuntary layoff list, he approached theApplicant seeking information about the voluntary severance package. He wanted to know about his WSIB entitlement if he elected thevoluntary severance package, but subsequently required surgery for his shoulder. [15] She said that she met with Mr. Pearson and the Applicant’s HR person before May 27, 2009 to discuss his WSIB entitlements. [16] Ms. Broderick stated that prior to May 16, 2009, Mr.

Pearson agreed to accept the voluntary severance package. Based upon thatadvice, the Applicant prepared and signed a letter dated May 27, 2009 offering Mr. Pearson the voluntary severance package, effectiveMay 16, 2009. Mr. Pearson signed that letter on May 28, 2009, and subsequently received the voluntary severance package.

The Decision of the Tribunal [17] At paragraph 11 of the decision (Decision No. 88/16 reported at 2016 ONWSIAT 1188) the Tribunal indicated that the issueunder appeal was whether the worker’s entitlement to LOE benefits and LMR services following the November 2009 compensable leftshoulder surgery should be rescinded as a result of the worker’s employment being terminated in May 2009. [18] In its May 5, 2016 decision the Tribunal rejected the evidence of Ms. Broderick that Mr.

Pearson voluntarily resigned effectiveMay 16, 2016, by first verbally accepting the voluntary severance package, and subsequently signing the May 27, 2009 letter on May 28,2009. The Tribunal upheld the Board’s decision that Mr. Pearson was placed on involuntary layoff effective May 16, 2009, and that thevoluntary severance letter signed by the Applicant and Mr. Person was of no effect as it was dated May 27, 2009, which was after Mr.Pearson’s employment had already been terminated. [19] The Tribunal also rejected Ms. Broderick’s evidence that there was suitable modified work available for Mr.

Pearson on May 16,2009. [20] The Tribunal upheld the decision of the Board. Parties to the Judicial Review Application [21] Section 9(2) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1 provides that the person who exercises or refuses toexercise a statutory power may be made a party to an application for judicial review. As the Court of Appeal held in Children’s Lawyerfor Ontario v.

Goodis (2005), (ON CA), 75 O.R. (3d) 309, the tribunal has the right to decide whether to become aparty. (para. 26) [22] If a tribunal decides to become a party or is added as a party, the court has discretion as to the scope of participation to beaccorded to the tribunal during the hearing.

In exercising that discretion, the court must take a contextual approach, considering whetherthe tribunal’s participation is necessary in order that there be a fully informed adjudication of the issues and whether the tribunal’sparticipation will undermine the tribunal’s impartiality. (para. 37-38) In exercising its discretion as to the scope of participation the courtshould consider a number of factors including the availability of another party able to knowledgeably respond to the attack on thetribunal’s decision. (para. 43) [23] In the case of Ireland v. EFCO Canada Corp. 2017 ONSC 188 (Div.

Ct.) the applicants raised as a preliminary issue whethercounsel for WSIAT should be restricted to submissions that defended the process engaged in by the Tribunal rather than the merits of theTribunal’s decision. The Divisional Court declined to prospectively limit what counsel for WSIAT might say about the merits. [24] In this case, the worker Robert Pearson, advised the week before the hearing scheduled for January 12, 2016 that he would notparticipate in the appeal to the Tribunal. He was named as a party in the judicial review application and was served with notice.

He didnot file responding material and he did not participate in this hearing. [25] The factum filed on behalf of the Tribunal contained a detailed analysis of the evidence including the documentary evidence,some of which was referred to in the decision of the Tribunal. Counsel for the applicant did not make a preliminary objection as to therole of counsel for the Tribunal. Nonetheless, it is incumbent on the court to exercise its discretion. In the absence of the worker or hiscounsel, the factum and submissions on behalf of the Tribunal provided a knowledgeable response on the merits of the issues that was

helpful to the court in arriving at this decision. Jurisdiction and Standard of Review [26] This Court has jurisdiction to hear applications for judicial review under ss.2, and 6 of the Judicial Review Procedure Act. [27] The parties agree that the standard of review is reasonableness. Pursuant to s. 123 of the Workplace Safety and Insurance Act1997, S.O. 1997 C.16 Sched A. decisions of the Tribunal are protected by “the toughest privative clause known to Ontario law” and itsdecisions are entitled to deference. Rodrigues v.

Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 719 at para.22. [28] Although in the appellant’s factum it submitted that the adequacy of reasons is a stand-alone basis for judicial review, and thatthe Tribunal is not entitled to deference on this issue, this position was not pursued during oral argument. [29] The Supreme Court has clarified that the issue is whether the Tribunal’s decision read as a whole, including the reasons, canwithstand a review on the reasonableness standard: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador(Treasury Board) 2011 SCC 62 , [2011] S.C.J.

No. 62 at para. 14 [30] I must therefore determine whether the decision was reasonable and in doing so must consider: a. Whether the reasons demonstrate justification, transparency and intelligibility, and b. Whether the decision falls within a range of possible, acceptable outcomes in light of the legal and factual context. Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 Issues [31] The Tribunal made three critical findings, the reasonableness of which is the subject of this judicial review. [32] Was the Tribunal’s decision reasonable in finding that a. Mr.

Pearson’s status did not change from involuntary layoff to voluntary layoff; b. Mr. Pearson’s employment was terminated involuntarily on May 16, 2009; and c. There was no permanent suitable modified work available to Mr. Pearson on May 16, 2009. Position of the Parties [33] The parties agree upon the underlying legal issues that were before the Tribunal. A worker who is injured at work and cannotwork is entitled to LOE and LMR benefits. If the employer terminates that worker, the worker continues to be entitled to LOE and LMRbenefits.

However, if the employer offers suitable modified work that the injured worker can perform, and the worker voluntarilyresigns, then the worker loses his LOE and LMR benefits: Decision No. 460/16 ONWSIAT 867 at para. 30. [34] There was no dispute that Mr. Pearson was injured at work. The Tribunal found that there was not suitable modified workavailable for him on May 16, 2009, and that he was involuntarily laid off on that date. He was therefore entitled to LOE and LMRbenefits. [35] The Applicant submitted that the failure of the Tribunal to explain why it rejected Ms.

Broderick’s uncontested oral evidence,and why it found her to not be credible, renders the decision unreasonable. [36] The Applicant also submitted that the Tribunal misapprehended Ms.

Broderick’s evidence, and the evidentiary value of the lettercontaining the offer of the voluntary severance package and other documentary evidence; also rendering the decision unreasonable. [37] Counsel for the Tribunal submitted that the decision is reasonable; that there was no misapprehension of the evidence; that theTribunal weighed all of the evidence, and reasonably concluded that the history of the events as demonstrated by the documentaryevidence was persuasive, and put into doubt the oral testimony of Ms. Broderick.

Analysis [38] The overarching error of the Tribunal is its failure to reasonably examine in its reasons evidence that was inconsistent with itsfindings. [39] The first unreasonable finding was the rejection by the Tribunal of Ms. Broderick’s sworn evidence that Mr. Pearson’s statuschanged from involuntary to voluntary layoff. [40] In reaching that conclusion, the Tribunal relied primarily upon the May 7, 2009 layoff notice and a portion of Board Memo #14dated May 20, 2009 that referred to its telephone call with the Applicant’s company nurse. [41] During her testimony Ms. Broderick acknowledged that Mr.

Pearson was sent the May 7, 2009 letter, but she gave specificreasons why Mr. Pearson’s status changed, namely the potential lost contract was not, in fact, lost, and there was a higher than expectedelection by others to take the voluntary severance package. This evidence was un-contradicted. [42] Instead of relying on that un-contradicted evidence, the Tribunal accepted the portion of Board Memo #14 dated May 20, 2009

containing the hearsay comment to the Board by a nurse employed by the Applicant that Mr. Pearson was permanently terminated, notwithstanding Ms. Broderick’s sworn testimony that that nurse was from a different location, and would have no knowledge of Mr. Pearson’s personal status. Also, the Tribunal failed to refer to the portion of Board Memo #14 where it is noted that Mr. Pearson advised the Board that he had received a voluntary resignation offer. [ 43 ] The Tribunal also did not refer to Board Memos #27 and 49, dated December 2, 2009 and May 4, 2011, respectively. [ 44 ] In those two Board memos Mr.

Pearson also advised his WSIB case manager that his status had in fact changed from involuntary to voluntary layoff during the relevant time period. [ 45 ] In light of this evidence, it was unreasonable for the Tribunal to find that Mr. Pearson’s status had not changed to voluntary layoff. [ 46 ] Second, the Tribunal failed to reasonably assess critical evidence in its analysis as to whether Mr.

Pearson had accepted the voluntary severance package. [ 47 ] The Tribunal focused its analysis upon the initial date of termination for involuntary layoff (May 16, 2009) and the date of the voluntary severance package letter (May 27, 2009), but it did not reasonably consider the evidence of Ms. Broderick and the information that the Board had in its file from Mr. Pearson. [ 48 ] Ms. Broderick explained the reason why the letter was dated May 27, 2009, even though there was a common understanding between the Applicant and Mr. Pearson that Mr. Pearson resigned effective May 16, 2009. She testified that since Mr.

Pearson was on sick leave and was not present at work, the timing of getting documents to him was difficult. [ 49 ] The Tribunal relied solely upon Board Memo #14 dated May 20, 2009. That Memo recorded the conversation with the nurse, to which I have already referred, and a conversation with Mr. Pearson at which time he told his WSIB case manager that he had not yet accepted the voluntary resignation offer. [ 50 ] The Tribunal did not refer to Board Memos #27 and 49 dated December 2, 2009 and May 4, 2011. In Memo #27 Mr. Pearson advised the Board that he took the voluntary severance package. In Board Memo #49 Mr.

Pearson was even more explicit on the three critical issues. He told his WSIB case manager that he was originally advised that he was being laid off, but then he was offered a voluntary severance package, and he was advised at that time that there was suitable modified work for him. He told his WSIB case manager that he took the voluntary severance package. [ 51 ] Therefore, on May 4, 2011, Mr. Pearson confirmed to the Board Ms.

Broderick’s sworn testimony on the three essential issues before the Tribunal: that his status changed from involuntary layoff to voluntary layoff; that he was offered and accepted a voluntary severance package; and that at that time he was advised that there was suitable modified work for him. [ 52 ] It was unreasonable for the Tribunal to dismiss the May 27, 2009 letter, by concluding that Mr. Pearson was involuntarily terminated on May 16, 2009, and therefore the letter was of no effect. This flies in the face of Ms. Broderick’s un-contradicted evidence and, Mr.

Pearson’s confirmation, both in that letter and in telephone calls with the Board recorded in two Board memos, that he had terminated his employment voluntarily effective May 16, 2009. I note on this latter point that Mr. Pearson did not attend the hearing so there was nothing advanced by him to contradict what he had earlier told the Board. [ 53 ] Third, it was unreasonable for the Tribunal to find that there was not suitable modified work available to Mr. Pearson on May 16, 2009. [ 54 ] Ms. Broderick testified that the Applicant provided modified work to Mr.

Pearson after his injury until he went on the employer’s short-term disability plan for a non-compensable matter in November 2008, and that, had he returned in May 2009, suitable modified work would also have been provided for him. This evidence is un-contradicted. [ 55 ] Since Mr. Pearson was on short-term disability in May 2009 and not working, there could not be evidence that at that time he was actually being afforded suitable modified work. There is no evidence that contradicts Ms. Broderick’s testimony that suitable modified work was available to Mr. Pearson on May 16, 2009, if he chose to return to work.

In fact, on May 4, 2011, as noted in Board Memo #49, Mr. Pearson told his WSIB case manager, that the Applicant had advised him that there was suitable modified work available for him when he was offered the voluntary severance package. [ 56 ] It is unreasonable to conclude that there was no suitable modified work available at the time of the letter in May 2009. [ 57 ] On each of the three key findings, the Tribunal rejected the un-contradicted evidence of Ms.

Broderick, (who the Tribunal refers to as the manager): Para. 25: The Panel finds that the manager’s evidence that the worker voluntarily left his employment in which suitable modified work was available is inconsistent with the documentary evidence on file and not reasonable. Para 26: The Panel does not accept the manager’s evidence that the worker was not the subject of involuntary layoffs as of May 16, 2009, the worker’s release date and that suitable modified work was available to the worker and the worker was advised of this for the reasons below.

Para. 27: There is no evidence of significance, oral or documentary, that supports a finding that the worker was advised that his employment was not terminated as of May 16, 2009. Para. 29: The Panel finds the content of this letter (dated June 4, 2009) and the manager’s testimony inconsistent with the documentary evidence on file.

Para. 32: . . . the Panel finds that on a balance of probabilities the accident employer did not have suitable employment available as of May 16, 2009, the date the worker’s employment ceased for the reasons set out below. In making this determination the Panel is aware that it is in the employer’s interest to assert that it would have made such an offer of modified employment and that some caution should be exercised when evaluating such an assertion. It would not be sufficient for the employer to make a bare assertion that suitable work was available to the worker.

A careful review of the evidence is required and furthermore, if the evidence was relatively equally balanced, the benefit of the doubt would go to the worker. Para. 33: The Panel finds that the accident employer has not lead any evidence, other than the testimony of the manager, which the Panel has not accepted, to show that modified work was actually available as of May 16, 2009, the date the worker’s employment was terminated. [ 58 ] The Tribunal did not provide an analysis for arriving at its conclusion to reject the manager’s evidence. The only explanation that could be gleaned was that Ms.

Broderick’s evidence was inconsistent with internal Board Memos. It is unreasonable for the Board to have rejected her evidence when it was un-contradicted; when it was consistent with some of the Board Memos and particularly those in which the worker had confirmed her evidence; and when it was consistent with the letter dated May 27, 2009 signed by the worker accepting the voluntary severance package. Furthermore, the rejection of her evidence in paragraph 32 above contains an implication of institutional bias against employers. Conclusion [ 59 ] In rejecting Ms.

Broderick’s un-contradicted evidence and in failing to address evidence inconsistent with the findings, the reasons do not demonstrate justification, transparency and intelligibility. Having found that the crucial findings of fact and law resulted from misapprehension of the evidence and rejection of un-contradicted evidence, it follows that the decision made by the Tribunal is not reasonable. This court will not defer to a tribunal where the unreasonable findings and decision arise from evidentiary rulings unrelated to the underlying expertise of the Tribunal.

Even in the context of “the toughest privative clause known to Ontario law”, the decision does not fall within a range of possible, acceptable outcomes in light of the legal and factual context. [ 60 ] I grant the judicial review and quash the Tribunal’s decision dated May 5, 2016. [ 61 ] The applicant sought a declaration to the effect that, aside from benefits during the surgery and recovery period, the worker has not been and is not entitled to LOE benefits and LMR services because the loss of his employment and earnings was unrelated to his workplace injury.

Counsel for the Tribunal made no reference to that remedy in his factum, and made no oral submissions as to the appropriateness of a declaration. [ 62 ] I am cognizant that the worker did not participate either before the Tribunal, nor in this judicial review application. However, he did receive notification that such a declaration would be sought. [ 63 ] This saga began in May 2009, slightly more than 8 years ago.

It is not in the interests of either party to prolong this matter by, as the alternative relief sought indicated, returning it to the Tribunal for a further hearing; nor is it necessary. [ 64 ] It is clear that Mr. Pearson was offered and accepted the voluntary severance package at a time when modified work was available to him. [ 65 ] Counsel confirmed that Mr.

Pearson had his surgery on November 9, 2009 and the end of his recovery period was April 15, 2010. [ 66 ] In the circumstances, I declare that aside from the receipt of LOE benefits during the period between the date of surgery (November 9, 2009) and the end of the recovery period (April 15, 2010), Mr. Pearson is not entitled to LOE benefits or LMR services under the Workplace Safety and Insurance Act , 1997 because the loss of his employment and earnings was unrelated to his workplace injury. Costs [ 67 ] The Tribunal and the Applicant agreed that an appropriate amount for a cost order is $7,500.

I am satisfied that this is a situation where costs should be awarded to the successful party. I order that the Tribunal shall pay the Applicant costs in the amount of $7,500.00 fixed, all-inclusive. D. Edwards, J. I agree Kiteley J.

I agree Nordheimer, J. Released: July 26, 2017 CITATION : Toronto Star Newspapers Limited v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 DIVISIONAL COURT FILE NO.: 378/16 DATE: 20170726 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER, AND D. EDWARDS, JJ. BETWEEN: TORONTO STAR NEWSPAPERS LIMITED -AND- WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and ROBERT PEARSON REASONS FOR JUDGMENT Released: July 26, 2017