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Administrative - Hearing - Bifurcated. Li v. Kiriakos [bifurcation]
In Li v. Kiriakos (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against "decisions by the WSIAT providing procedural direction and dismissing the appeals brought by Mr. Li of the WSIB’s quantification of his benefits resulting from a knee injury".
The court considers an administrative hearing 'bifurcation' issue, here between appeal merits and HR-Charter issues:Issue #1: Did the Tribunal’s decision to follow the practice direction to separate consideration of the appeal’s merits from the Charter/human rights allegations render the proceeding procedurally unfair?
[11] Mr. Li argues that the Tribunal’s decision to follow its practice direction in first considering the merits of his appeal and reaching a decision on those issues, and then subsequently considering the Charter/human rights issues in a separate decision was procedurally unfair. He suggests that this was done in bad faith, and illegally distorted the WSIA as it was done to avoid actually addressing his Charter/human rights arguments. In its decision dated January 23, 2023, the Tribunal dealt with this issue.
[12] In its decision dated January 12, 2023, the Tribunal noted that its authority under s. 123 of the WSIA is restricted to determining the worker’s entitlement to benefits under the WSIA. If it is necessary for the Panel to consider the provisions of the Charter and the Ontario Human Rights Code in order to determine the worker’s entitlement to benefits under the WSIA, the Tribunal has jurisdiction to do so. However, the Tribunal went on to note that if the worker believes that the actions of individuals either at the WSIB or at the Appeals Tribunal have violated his rights under the Charter or the Human Rights Code, his remedy, if one exists, cannot be contained in this benefit appeal under the WSIA, “because the Panel only has the authority to award benefits under the WSIA”. The Tribunal went on to state,In addition, if a prior decision of the WSIB regarding the worker’s benefit entitlement is incorrect, while the Appeals Tribunal has the ability to correct that decision, the Tribunal does not have the authority to award any further remedy based upon a finding that the earlier decision may have violated the worker’s rights under the Charter or the Human Rights Code. The Panel has no authority for example to make an order for aggravated or punitive damages, costs, or other damages based upon a violation of the worker’s Charter or human rights. [13] I would note that this statement is consistent with s. 123 of the WSIA which provides as follows:(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 healthcare, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;
(b) all appeals from final decisions of the Board with respect to transfer of costs, and employer’s classification under the insurance plan and the amount of the premiums and penalties payable by a schedule one employer and the amounts and penalties paid by a schedule two employer;
(c) such other matters as are assigned to the appeals Tribunal under this act. [14] The WSIAT has the authority to control its own process. Its practice direction allows for the efficient treatment of human rights and Charter issues because it provides that those issues will only be addressed if needed once a final decision on the other issues in the appeal have been made. The deferral of a consideration of any potential violation of the Applicant’s human rights or Charter rights until after the initial determination is procedurally fair given that this area of appeal is not being taken away, but rather deferred until after the worker’s entitlement to benefits has been considered. It is also reasonable that the WSIAT limit its consideration to the worker’s entitlement to benefits under the WSIA. In this case, the Applicant’s allegations of Charter and human rights violations were fully considered in a subsequent WSIAT decision. I would not give effect to this ground of review. . Sudbury and District Health Unit v Ontario Nurses’ Association
In Sudbury and District Health Unit v Ontario Nurses’ Association (Div Court, 2023) the Divisional Court considered whether, and if so how, the bifurcation of a hearing impacted JR prematurity doctrine:Bifurcation
[23] The Applicant suggests that because the hearing was bifurcated at a natural break between separate phases of the hearing, it does not raise the same concerns with respect to fragmentation and delay. The case law does not support this argument. While the Federal Court of Appeal has recognized that decisions bifurcated between the merit and remedy phases of a hearing may not raise the same concerns about fragmentation, it explicitly contrasts that with the situation where the hearing is bifurcated on the merits. (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 CanLII 6522 (ON LRB) at para. 36, reviewed on other grounds 2016 SCC 29.)
[24] Even where the only remaining issue is remedy, the court is often loathe to intervene, finding that the question of remedy should be determined before recourse is made to the Divisional Court. (Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 847 (CanLII); Jones Lang Lasalle Real Estate Services Inc. v Human Rights Tribunal of Ontario and Brian Graff, 2015 ONSC 4005 (CanLII)).
[25] In this case, the decision in question is clearly “in the middle of the hearing on the merits”. There are multiple issues remaining to be determined and there is a real risk of fragmentation and piecemeal litigation if the court proceeds with the application at this time.
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