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Civil and Administrative
Litigation Opinions
for Self-Reppers


WSIAT - Workplace Safety and Insurance Appeals Tribunal (WSIAT)

. Colella v. Ng

In Colella v. Ng (Div Court, 2024) the Divisional Court considered a JR from "decisions of the Workplace Safety and Insurance Tribunal ... that resulted in a determination that the Applicant ... was barred from proceeding with a civil action claiming damages for negligence from the" respondent employer.

Here the court considers the WSIAT reconsideration regime:
[27] Colella requested a reconsideration of the Tribunal’s decision.

[28] In its reconsideration decision, the Tribunal noted that a high threshold must be met when a request to reconsider a decision is made. The Act does not provide parties with any absolute right to have a decision reconsidered. Instead, s. 129 of the Act gives the Tribunal the discretion to reconsider a decision “if it considers it advisable to do so.” A request for reconsideration must demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being reopened. The Tribunal noted that this test had been upheld by the Divisional Court in Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919.

[29] In its reconsideration decision, the Tribunal expressed its determination that Colella had not raised any fundamental error of law or process that would, if corrected, likely produce a different result. The decision sought to be reconsidered had appropriately acknowledged that the accident took place off work premises but had provided a reasonable and coherent analysis to arrive at its conclusion that, based on all of the surrounding circumstances, Colella was in the course of employment when the accident occurred.
. Priolo v. Workplace Safety and Insurance Appeals Tribunal

In Priolo v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2024) the Divisional Court considered the tribunal appeal and judicial review regime under the Workplace Safety and Insurance Act:
[1] The Applicant seeks judicial review of the Respondent’s decision “that the medical evidence does not establish that the worker’s 2006 accident made a significant contribution to his psychological impairments on the balance of probabilities” (Original Decision, para. 51) and the Respondent’s two subsequent reconsideration decisions denying the applicant’s request to reconsider the impugned decision.[1]

Jurisdiction and Standard of Review

[2] There is no appeal from a decision of the Respondent. Section 123 of the Workplace Safety and Insurance Act, SO 1997, c.16, Sch. A, provides:
(1) The Appeals Tribunal has exclusive jurisdiction to hear and decide,

(a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;

... .

3) On an appeal, the Appeals Tribunal may confirm, vary or reverse the decision of the Board.

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.

(5) No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.
[3] As stated by this court in Radzevicius v. WSIAT, 2020 ONSC 319:
The standard of review is reasonableness. None of the questions before the Court are constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between administrative bodies. The Act also contains a robust privative clause. The Legislature has clearly signaled its intention that the Tribunal’s decisions be given great deference (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 33, 53).
See also: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719; Morningstar v. WSIAT, 2021 ONSC 5576 (Div. Ct.).


[6] The Applicant seeks to set aside the Tribunal’s decision and the two reconsideration decisions and asks this court to declare that the workplace injury was a significant contributing factor to his psychological impairment and thus that he is entitled to benefits in accordance with the Workplace Safety and Insurance Act, 1997, SO 1997, c.16, Sched. A.
. Mihindukulasuriya v WSIAT and Aramark Food Services [can you say deference?]

In Mihindukulasuriya v WSIAT and Aramark Food Services (Div Court, 2023) the Divisional Court (enthusiastically) applies deference in a judicial review of the 'specialized and expert' WSIAT (this of an administrative appeal dismissal), this apparently in addition to the Vavilov 'reasonableness' standard of review (SOR):
Standard of Review

[14] It is well settled that the reasonableness standard applies to judicial reviews of Tribunal decisions.

[15] Courts have acknowledged that the Tribunal is a specialized and expert tribunal, which hears evidence, finds facts, decides questions of law, and deals with caselaw and policy in workplace safety and the statutory insurance scheme.

[16] The Tribunal has exclusive jurisdiction to hear appeals from decisions of the Board, which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under its home statute, WSIA.

[17] The Tribunal's decisions are subject to what the Ontario Court of Appeal has described as “the toughest privative clause known to Ontario law.” As a result, the Tribunal is to be accorded the “highest level of deference” with respect to its decisions.


[18] The issues decided by the Tribunal in this case fall squarely within its area of experience and expertise. The Tribunal considered the WSIA and relevant Board Policies. The Tribunal considered subsections 13(4), (4.1) and (5) of the WSIA, which govern the applicant’s claim for benefits. The Tribunal correctly applied both its jurisprudence and Board policy. The Tribunal’s lengthy reasons were justified, intelligible, and transparent in respect of the facts and the law. As such, this is not a case where the court should intervene on judicial review.

[19] The applicant’s attempt to re-litigate the issue of alleged discrimination and the re-classification of his position is an inappropriate use of judicial resources and not a function of this court on judicial review. A reviewing court is not to interfere with findings of fact and the weighing of evidence by an administrative tribunal. While the applicant may have preferred that the Tribunal weigh evidence differently, the Tribunal’s determinations were reasonable and are entitled to deference.

[20] The Tribunal, in interpreting provisions of its home statute, as well as Board policies, is entitled to deference. ...


[25] The Tribunal considered the relevant legislative provisions relating to the applicant’s claim as well as the relevant policies. Its interpretation of its home statute and relevant policies is owed deference. There is no flaw or gap in the reasoning. The Tribunal considered the evidence and testimony and came to a reasonable conclusion. The Tribunal’s decision that the applicant’s claim related to his demotion and reduction of pay was reasonable. There is no basis upon which to find the decision unreasonable.


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Last modified: 30-04-24
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