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Chair's Message
The First Quarter Century

The end of 2010 also marked the end of the first quarter century of the Appeals Tribunal’s existence.  When the government implemented Professor Paul Weiler’s recommendation and created the Appeals Tribunal in October 1985, it marked the beginning of a long and winding road for the new appeals body.  As it evolved over the quarter century, the Tribunal encountered many bumps and potholes along the adjudication road; however, the dedicated members of the Tribunal team, along with knowledgeable supporters from the injured worker, employer and legal communities, ensured that the Appeals Tribunal would continue to improve and grow from an adjudicative caterpillar into an appeals monarch butterfly whose wingspan would attract attention in Canada’s administrative justice system.

In 1986, the Tribunal’s first full year of operation, it received approximately 2,000 appeals and released 463 final decisions, with an OIC adjudicative roster composed of 57 Vice-Chairs, Worker and Employer Members.  Twenty-five years later, the Appeals Tribunal received approximately 4,000 appeals and released over 2,600 decisions, with an OIC adjudicative roster of 77 adjudicators.  By the end of 2010, the Appeals Tribunal had released over 54,000 decisions during its first 25 years.  At the Tribunal’s 25th Anniversary Symposium, a number of the guest speakers, including Justices John Laskin and John Murray and Professor Emeritus David Mullan, noted the Tribunal’s efforts to provide quality adjudication in the administrative justice system, and how that was reflected in the Tribunal’s record on judicial reviews.  To date, the Tribunal has received 115 judicial review applications to quash a tribunal decision; at the end of 2010, only one of those applications had been successful. 

The Tribunal’s focus on quality adjudication and its judicial review record has allowed the Appeals Tribunal to gain a reputation as an “experienced and expert” adjudicative tribunal.  The Ontario Divisional Court decision in Toronto (City) Police Service v. Phipps, 2010 ONSC 3884, confirmed that reputation.  In considering the judicial review of a Human Rights Tribunal decision, the Panel reviewed the standard of review analysis and in paragraph 38 commented:

It is obvious that when the Legislature enacted that standard in December 2006, the intent was to have the courts accord the same high degree of deference to the Tribunal that they accorded to other experienced and expert administrative tribunals, such as the Ontario Labour Relations Board (for example, in Ajax (Town) v. CAW - Canada (Local 222), [2000] 1 S.C.R. 538), the Workplace Safety and Insurance Appeals Tribunal (Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2008), 92 O.R. (3d) 757 (C.A.) at para. 16) and labour arbitrators interpreting and applying collective agreements (Lakeport Beverages v. Teamsters Local Union 938 (2005), 77 O.R. (3d) 543 (C.A.) at paras. 30-31).

Similarly, in the case of Chaudhari v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2010 ONSC 1032, the Divisional Court commented at paragraph 25:“ This Court is required to afford substantial deference to the Tribunal’s decisions.  The law demands non-interference unless the decision under review is manifestly unreasonable and unsupportable by any line of reasoning.”

The Court in the case of Boroumandi v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2010 ONSC 2391, commented at paragraph 13 of the decision:“ In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2008] O.J. No. 2150 at paras. 14 and 24, the Court of Appeal applied Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190 and confirmed that ‘the jurisprudence has established that the highest level of deference applies to Tribunal decisions.’ ”

Interestingly, in the one judicial review application in which the Tribunal was unsuccessful, despite the approach in other Divisional Court and Court of Appeal decisions involving Tribunal appeals, the Court in Amin v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2009 O.J. No. 4715, disagreed with the Tribunal’s factual determination relating to the medical causation issue.  Although part of the medical causation issue was the temporal relationship, the Divisional Court offered the opinion [at para. 32] that, if the Tribunal were not satisfied with the evidence, “…the Tribunal can require the applicant to submit to a health examination.”  Apparently, the Court concluded that this process would shed light on the worker’s medical state and the causation issue approximately five years earlier.  The Court then directed the matter be referred to a differently constituted Tribunal Panel and sent the case back to the Tribunal.

As mentioned earlier, the Tribunal has encountered some significant obstacles and adversaries in the long and winding road during its first quarter century.  The avalanche of incoming appeals in 1998 (almost 11,000) certainly put a strain on the Tribunal resources; however, the Tribunal team responded to the challenge and dealt with a dramatically increased appeal caseload and related problems.  While the employer and worker communities have generally been very supportive of the Appeals Tribunal, not everyone wanted the Appeals Tribunal to survive; but, once again, the Tribunal team and the community supporters fought to ensure the Tribunal’s survival as an independent appeal body and, in the end, they were successful.  The fight to survive and overcome the challenges, in some ways, is a reflection of the sentiment in the poem “No Enemies?”, by Charles Mackay.

No Enemies?

You have no enemies, you say?
Alas, my friend, the boast is poor;
He who has mingled in the fray
Of duty, that the brave endure,
Must have made foes! If you have none,
Small is the work that you have done.
You’ve hit no traitor on the hip,
You’ve dashed no cup from perjured lip,
You’ve never turned the wrong to right,
You’ve been a coward in the fight.

                           Charles Mackay (1814-1889)

Fortunately, the Tribunal team and its supporters were prepared to mingle in the fray, and they continue to attempt to turn “the wrong to right.”  The quest for quality in our administrative justice system, referred to in last year’s Annual Report, is a reflection of their efforts and, hopefully, their commitment will endure for another quarter century.

The Tribunal’s 2005 Annual Report noted that, “Sometimes the best way to predict the future is to create it,” and over the next quarter century it will be up to WSIB and WSIAT to create a positive future for the workplace safety and insurance system by continuing to improve the WSI process.  The government’s introduction of ATAGAA (Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009) and its merit-based appointment process represents a significant step in that direction, and new technology should allow for more effective tools, such as online filings and processing, online alternative dispute resolution,  tracking of injury types and occupational disease patterns in specific industries and work locations and, perhaps, online retraining, all of which should enhance the quality of the workplace safety and insurance system in the future and help to set the tone for the next 25 years.

Ian J. Strachan
Tribunal Chair


Posted: January 28, 2011

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