|
Administrative - Tribunal - Impartiality. Irving Consumer Products Limited v. Singh
In Irving Consumer Products Limited v. Singh (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed a JR, this from a WSIAT decision and associated reconsideration that a respondent could sue a corporation and it's employee under WSIA s.28 ['Certain rights of action extinguished'] "for compensation for injuries suffered by Mr. [Gurjot] Singh in the course of his employment".
The incident and procedural facts are complex. Irving is a large multi-provincial NB-based corporation that hired Singh's employer Rangi to transport goods in a truck from NB to Toronto to Texas. Surinder Singh (SS) drove the truck from NB to Toronto, and Gurjot Singh (GS) drove it from Toronto to Texas where he was injured in it's unloading. Both Irving and Rangi are registered Schedule 1 employers under the Ontario WSIA scheme, and Irving is additionally registered under the similar NB scheme. Rather than claiming under Ontario WSIA scheme, GS and the trucking company sued Irving and an employee ('John Doe') in Ontario Superior Court for negligence in loading the truck in NB, on the argument that "the injuries sustained by Mr. [Gurjot] Singh in the course of his employment in Texas were caused by the negligence of Irving and John Doe improperly loading the trailer and securing the load in New Brunswick". In response, Irving commenced a third party claim against Rangi that Rangi and SS "caused or contributed to the injuries sustained by the plaintiffs Gurjot Singh and his spouse".
Irving then commenced an Ontario administrative "application under s. 31 of WSIA, 1997 seeking an order that the plaintiffs’ rights to sue them were extinguished under s. 28 of the statute", which the WSIAT dismissed on the basis that "John Doe has no connection to Ontario" (so, under that order, the main lawsuit could proceed). This WSIAT ruling was the subject of this JR, which was allowed and the application remitted back down to the WSIAT.
In these extracts the court criticizes the WSIAT, while acting as an appellate party (not apparently as an intervenor), for taking "an adversarial position on the merits" and holding that "is not appropriate for a neutral, independent statutory decision maker to be taking sides and to be seen to be supporting its own virtuosity and correctness":The Role of the Tribunal
[115] The tribunal filed a comprehensive factum that was of assistance to the court in dealing with agreed facts, the workings of the statutory scheme, and the applicable standard of review.
[116] However, commencing at para. 53, the tribunal then took an adversarial position on the merits. It told the court why its decision was reasonable. It went through each of the issues between the parties and supported the respondents and itself on each issue.
[117] It is not appropriate for a neutral, independent statutory decision maker to be taking sides and to be seen to be supporting its own virtuosity and correctness.
[118] The court has a discretion to call on a tribunal to allow more depth of argument especially if one side is not represented. But where the parties are well represented, as was the case here, it is not appropriate for the tribunal to be seen to cast its lot with one party. Do Irving and John Doe now need to fear that on a new hearing the tribunal is already committed to its view of the outcome? I have ordered that the new hearing be before a differently constituted tribunal to try to guard against that outcome.
[119] This is not a new issue for this tribunal in particular. In Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 ONSC 4898, this court wrote:[7] Once the tribunal is a party, the court still has discretion as to the scope of participation to be accorded to the tribunal during the hearing. This involves balancing the need for fully informed adjudication against the importance of maintaining tribunal impartiality (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at paras. 57 and 59; Northwestern Utilities Ltd. v. Edmonton (City), 1978 CanLII 17 (SCC), [1979] 1 S.C.R. 684, at p. 708-711; Toronto Star Newspapers Ltd. v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 (Div. Ct.), at para. 22). Although, in this case, there is another respondent who can participate in the proceedings, the Tribunal is in a unique position to present arguments concerning the applicable standard of review, jurisdictional issues, policy considerations, and the interrelationship of legislative provisions in the Workers’ Compensation Act and the Workplace Safety and Insurance Act, 1997. (See Ireland v. EFCO Canada Corp., 2017 ONSC 188 (Div. Ct.), at paras. 26-32.) That being said, considering the importance of maintaining tribunal impartiality, those portions of the Tribunal’s Factum from paragraphs 82 forward that address the reasonableness of its Decision will not be taken into account in determining this judicial review. [Emphasis added.] [120] Similarly, in Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 (CanLII) the court again raised the same issue:[10] The court also raised with the WSIAT a concern with respect to its role in this proceeding and whether it ought to be adopting an adversarial approach in its factum arguing about the merits of its own decision. Mr. Paliare acknowledged the panel’s concerns and advised that while he is prepared to argue the issue, he will also ensure that the approach taken pays due heed to the tribunal’s impartiality. Accordingly, we leave any further consideration of this question to the panel that may ultimately hear the matter. [121] We have ignored the provisions of the tribunal’s factum from paras. 52 to 81 inclusive.
[122] I wish to be clear as well that this problem does not lie at the feet of counsel who appeared before us. She was not yet called to the bar when the court told her client and her principals to stop taking sides on the merits when the tribunal’s own order is under review. It should not happen again.
|
