



COURT OF APPEAL FOR ONTARIO

CITATION: Taylor v. Workplace Safety & Insurance Board,
    2018 ONCA 108

DATE: 20180206

DOCKET: C63503

Laskin, Huscroft and Paciocco JJ.A.

BETWEEN

Paul Taylor

Plaintiff (Appellant)

and

Workplace
    Safety & Insurance Board  WSIB and Workplace Safety & Insurance Appeals
    Tribunal - WSIAT

Defendants (Respondents)

Paul Taylor, acting in person

Jean-Denis Belec and Jeffrey Clarke, for the respondent
    WSIB

Andrew Lokan and Debra McKenna, for the respondent WSIAT

Heard: December 18, 2017

On appeal from the order of Justice David Price of the
    Superior Court of Justice, dated February 22, 2017, with reasons reported at
    2017 ONSC 1223.

REASONS FOR DECISION

A.

Introduction

[1]

In 1997, the appellant, Paul Taylor, was injured on the job while
    unloading a large shipment of goods from a tractor trailer truck. Since then,
    for the past 20 years, he has been litigating over his Workplace Safety &
    Insurance Board benefits. He has had numerous hearings before the Board, and
    brought various appeals before the Workplace Safety & Insurance Appeals
    Tribunal. Some of his claims have been accepted; some have not.

[2]

In February 2014, Taylor started an action against both the Board and the
    Tribunal. In his amended statement of claim, he sought compensatory damages
    of $1,710,455, broken down into various categories of benefits, as well as punitive
    damages of $15 million.

[3]

Both the Board and the Tribunal brought motions to dismiss Taylors
    claim for lack of jurisdiction and alternatively, to strike his pleadings on the
    ground that they disclosed no reasonable cause of action. In lengthy reasons,
    the motion judge granted their motions. The main basis for his decision was
    that Ontarios Superior Court of Justice does not have jurisdiction to grant
    relief against the respondents in a civil action. Relief against the Board and
    the Tribunal must be sought on judicial review.

[4]

Taylor appeals the motion judges decision. He raises two issues:

1.

Did the motion judge err in dismissing Taylors claim for lack of
    jurisdiction?

2.

Did the motion judge err either by striking Taylors pleadings as
    failing to disclose a reasonable cause of action for bad faith or misfeasance
    in public office, or by refusing to grant Taylor leave to amend his statement
    of claim?

[5]

We dismiss the appeal on both issues.

B.

discussion

(1)

Did the motion judge err in dismissing Taylors claim for lack of
    jurisdiction?

[6]

The motion judge set out the particulars of Taylors claim against the
    Board and the Tribunal for damages for loss of benefits and for punitive
    damages. The essence of Taylors complaint against the Board is that the Board
    treated him unfairly and denied him the benefits and treatment to which he was
    entitled. The essence of Taylors complaint against the Tribunal is that the
    Tribunal did not treat him fairly in the hearing process, that the Tribunals
    decision was wrong and should be reversed, and that the Tribunal and its
    members committed various torts against him.

[7]

In substance, these complaints are about the decisions made and the
    process used by the Tribunal and Board in determining Taylors entitlement to
    benefits. The motion judge held that the court cannot grant the relief Taylor
    seeks because, under s. 123 of
Workplace Safety and Insurance Act
,
1997
,
    S.O. 1997, c. 16, Sch. A, the jurisdiction to grant this relief falls under the
    exclusive jurisdiction of the Board and the Tribunal. Section 123 provides, in
    relevant part:

123

(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
. [Emphasis
    added.]

[8]

We agree with the motion judge. We also agree with the motion judge that
    a litigant cannot circumvent the statutory scheme for granting benefits for
    workplace injuries by alleging, as Taylor has done, bad faith and then coupling
    this allegation with a damages claim. This court has held that circumventing
    the statutory scheme for the determination of benefits by a civil action
    amounts to an abuse of process. See:
Pagourov v. Science Application
    International Corp.
, 2007 ONCA 745.
Pagourov
holds that neither
    the Superior Court nor this court has jurisdiction over Taylors claim for loss
    of benefits or for punitive damages.

[9]

To avoid the effect of this courts decision in
Pagourov
,
    Taylor relies on this courts recent decision in
Castrillo v. Workplace
    Safety and Insurance Board
, 2017 ONCA 121, 136 O.R. (3d) 654. There, this
    court held that the motion judge had erred in striking out a claim in a class
    action. The claim in question alleged that the Board had committed the torts of
    misfeasance in public office and negligence by secretly adopting a new policy
    on pre-existing injuries. The Board submitted that the appeal was a collateral
    attack on its decision regarding the appellants entitlement to benefits. But
    at para. 51 of his reasons, Lauwers J.A. rejected the Boards argument. He distinguished
    the case before him, which involved a policy decision of the Board, from cases that
    involve individual claims. The latter are in essence an attack on the Boards
    or Tribunals exclusive jurisdiction over benefits:

I do not take that view of the appellants claims.
He is not
    complaining about a specific decision regarding his personal entitlement
,
    as occurred in, for example,
Aird v. WSIB
,
Aird v. WSIAT
,
    2010 ONSC 3600 (CanLII), at paras. 14-15, and
Pagourov v. Science
    Applications International Corporation
, 2007 CanLII 7398 (ON SC), 2007
    CanLII 7398, at para. 12, affd 2007 ONCA 745 (CanLII). Nor do I see his claims
    as a collateral attack to circumvent the WSIB as an expert tribunal, as
    described in
Garland v. Consumers Gas Co.
, 2004 SCC 25 (CanLII),
    [2004] 1 S.C.R. 629, at para. 71 and
R. v. Consolidated Maybrun Mines Ltd.
,
    1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706.
Nor is this pleading linked to
    the specific circumstances of the appellants complaint
; it challenges the
    legality of the WSIBs actions across a category of benefits and a class of
    persons.
I would see this class action as categorically different, not as a
    collateral attack on the WSIBs specific determination of the appellants
    entitlement
. [Emphasis added.]

As Taylors case is
    properly characterized as involving an individual claim about his personal
    entitlement, and not a general policy decision of the Board,
Castrillo
does not assist him.

[10]

Thus,
    we decline to give effect to Taylors appeal on this first issue.

(2)

Did the motion judge err either by striking Taylors pleadings as
    failing to disclose a reasonable cause of action for bad faith or misfeasance
    in public office, or by refusing to grant Taylor leave to amend his statement
    of claim?

[11]

In
    his pleadings, Taylor asserts a wide range of complaints against the Board and
    Tribunal, which broadly speaking fall into two categories. The first category
    relates to allegations about how these bodies decided Taylors benefit claims. The
    second category relates specifically to certain conduct and words of a Tribunal
    member on an appeal hearing before the Tribunal in 2007. The motion judge
    struck Taylors amended statement of claim in its entirety, as the allegations
    it contained did not amount to torts recognized in law.

[12]

Additionally,
    at the hearing of the motions, Taylor alleged that the bad faith conduct of the
    Board and Tribunal described in his amended statement of claim amounted to the
    tort of misfeasance in public office. Taylor did not plead this cause of action
    in his amended statement of claim, but he raised it before the motion judge.
    And the motion judge dismissed the claim for misfeasance in public office on
    two grounds: it was not tenable in law because, even in his factum, Taylor had
    not pleaded the elements of a cause of action for the tort; and it had been
    brought beyond the two year limitation period in
the
Limitations Act
,
2002
, S.O. 2002, c. 24,
    Sch. B, and so was statute-barred. The motion judge also refused to grant
    Taylor leave to amend his amended statement of claim to assert this cause of
    action because even if corrected, the pleadings would still fail to disclose a
    reasonable cause of action.

[13]

On appeal, Taylor argues in substance that his amended statement of
    claim appropriately pleads the tort of bad faith and, when read generously, also
    discloses a cause of action for misfeasance in public office. He contends that
    the allegations in his pleadings make out the tort of misfeasance in public
    office on either of two grounds: the bad faith denial of his claims for
    benefits; and the improper comments and conduct of a Tribunal member at a 2007
    hearing.

[14]

Alternatively, Taylor asks this court for leave to amend his pleadings
    to assert this cause of action. We do not agree with Taylors arguments, and
    decline to grant him leave to amend.

[15]

Dealing
    first with Taylors assertion that he appropriately pleaded the tort of bad
    faith, we observe that a government officials bad faith conduct is not
    independently actionable. Our law does not recognize a stand-alone action for
    bad faith:
Alberta v. Elder Advocates of Alberta Society
, 2011 SCC 24,
    [2011] 2 S.C.R. 261, at para. 78.

[16]

Second, the motion judge was correct to hold that Taylors amended statement
    of claim does not assert a cause of action for the tort of misfeasance in
    public office. This tort redresses unlawful conduct in the exercise of public
    functions. The Supreme Court discussed the torts constituent elements in
Odhavji
    Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263. Although the
    Supreme Court distinguished between two categories of the tort representing two
    different ways in which a public officer can commit the tort, it held that both
    categories have the same two basic elements: first, a public officer must have
    engaged in deliberate and unlawful conduct in his or her capacity as a public
    officer; and second, the public officer must have been aware both that his or
    her conduct was unlawful and that it was likely to harm the plaintiff. See:
Odhavji
,
    2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 17-23. Even read generously, Taylors
    pleadings do not satisfy either element of the tort and therefore do not disclose
    a reasonable cause of action for misfeasance in public office.

[17]

Taylors pleadings repeatedly reference bad faith, and although bad
    faith may go towards demonstrating that a government officials conduct was
    unlawful, bad faith alone is not sufficient to make out the tort:
Odhavji
,
    at para. 28. Taylors pleadings do not satisfy the other components of the
    tort: that the unlawful conduct alleged was deliberate and carried out by a specific,
    named official; or that any such conduct was knowingly unlawful and
    specifically intended to harm Taylor.

[18]

Further,
    to the extent Taylors claim relates to his dissatisfaction with how the Board
    and Tribunal handled his benefits claims, the factual underpinnings necessary
    to make out the tort of misfeasance in public office are wholly deficient.
    Nowhere in his very detailed amended statement of claim does Taylor set out the
    material facts necessary to support either element of the tort. Rather,
    Taylors amended statement of claim is replete with generalized complaints
    about the Board and Tribunal, none of which are actionable.

[19]

Finally,
    Taylors allegation concerning the conduct and comments of a Tribunal member in
    2007 cannot give rise to a reasonable cause of action for misfeasance in public
    office. In pursuing this part of his claim, Taylor relies entirely on a
    recording he surreptitiously and improperly made of the Tribunals
    deliberations on one of his appeals. But as the motion judge noted, admitting
    that recording would violate the principle of deliberative secrecy, which is
    necessary to preserve the independence of decision-makers. See:
Cherubini
    Metal Works Ltd. v. Nova Scotia (Attorney General)
, 2007 NSCA 37, 282
    D.L.R. (4th) 538, at para. 14.

[20]

The
    remaining question is whether we should grant Taylor leave to further amend his
    pleadings to assert a claim for misfeasance in public office. As mentioned, the
    motion judge declined to grant leave, and we agree with his decision.

[21]

Taylors
    alleged claim is rooted in events that took place a decade ago. He has had
    ample opportunity to put forward amendments to support his claim, and yet has
    failed to do so. Even in this court and in the face of the motion judges
    decision, he did not provide us with proposed amendments to his pleadings.
    Finality in civil litigation is an important principle, and this principle
    would be undermined by now granting Taylor leave to amend.

[22]

Thus,
    it is not necessary to decide whether the motion judge was correct in holding
    that Taylors claim would be barred by the two year limitation period in the
Limitations
    Act
. We do note, however, that neither defendant has delivered a statement
    of defence. This court has held consistently that only in rare cases, if any,
    will we entertain a motion to dismiss an action as statute barred under the
Limitations
    Act
in the absence of a statement of defence. See
Salewski v. Lalonde
,
    2017 ONCA 515, 137 O.R. (3d) 750, at paras. 42-46.

[23]

For the above reasons we decline to give effect to Taylors appeal on
    the second issue.

C.

Conclusion

[24]

Taylors
    appeal is dismissed, with costs to the Board in the amount of $2,000 and to the
    Tribunal in the amount of $2,500, each inclusive of disbursements and HST.

John
    Laskin J.A.

Grant
    Huscroft J.A.

David
    M. Paciocco J.A.


