Highlights of Noteworthy Decisions

Decision 1786 11 I2
E. Smith - E. Tracey - A. Grande
  • Abuse of process
  • Charter of Rights
  • Dismissal (of appeal)
  • Estoppel
  • Legal precedent (consistency)

A 67-year-old electrician suffered multiple injuries when he fell through a ceiling in 2003. The worker appealed a decision of the Appeals Resolution Officer granting LOE benefits for two years only. In Decision No. 1786/11I, the Panel found that the Board correctly applied s. 43(1)(c) of the WSIA to limit the worker's LOE benefits to two years. The Panel then adjourned the hearing, to reconvene to consider the Charter issue raised by the worker of whether s. 43(1)(c) is inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms.

In this decision, the Panel considered the motion by the Attorney General of Ontario to dismiss the appeal on the Charter issue on the grounds that proceeding with the hearing would constitute an abuse of process. The Attorney General submitted that it would be manifestly unfair to require the parties to re-litigate an issue that has been previously decided. The Attorney General noted that expert evidence of the worker was from the same expert and is substantially similar to the expert evidence considered in Decision No. 512/06. He further submitted that the law is the same as decided in Decision No. 512/06, that the expert evidence is substantially the same and distinctions in the facts do not affect the matter.
The Panel noted that it is not bound by prior Tribunal decisions. It would constitute a declining of jurisdiction to dismiss the appeal without addressing the Charter issue simply because a different panel has issued an interpretation of the law that would be sufficient to dismiss this appeal if this Panel considered itself bound by that interpretation.
In this case, the worker has not had an opportunity to argue the Charter issue; he did not have a right to participate in the prior appeal, which involved different parties.
The worker has a right to bring forward his appeal even if he is relying on an interpretation of the law that has been previously addressed in another Tribunal decision and even if relying on expert evidence that is substantially the same as previously addressed. There are situations in which a worker would not be permitted to re-litigate and the doctrines of issue estoppel and abuse of process would apply. However, that was not the situation in this case, where different workers are involved. Each has a statutory right to appeal. The Tribunal is bound to consider each case on its merits.
Ultimately there is a need for panels to address the issue of consistency in Tribunal decision-making. However, there has been only one prior decision that considers the particular Charter issue in this case. It is not unexpected that Tribunal decisions may diverge when case law is developing.
The motion to dismiss was denied. The hearing will reconvene to hear the Charter issue.