important caselaw

Caselaw are decisions of the same level of a court or board/tribunal/commission or higher court that can be used to persuade the decision maker to rule in your favor. 

It is important to note that decision makers are not compelled to follow decisions from the same level of court or board/tribunal/commission. However, decisions makers must follow decisions from higher courts unless there is an extremely compelling reason for them to do so. 

This is also the same for decisions from outside of their Province/Territory.  

This is referred to the Doctrine of Stare Decisis.

Click here to learn more about the Doctrine of Stare Decisis.   

The following are decisions of the from Ontario's WSIAT, Divisional Court, and Supreme Court of Canada, which impact those dealing with workers compensation law. 

Also, human rights law as this law is interconnected with workers compensation law.

When you need to challenge a medical report, this decision at para 66 provides a detailed test for challenging a medical report. 

Decision No. 1229/19, 2019 ONWSIAT 2745 (CanLII), at para 66, https://canlii.ca/t/j4pvs#par66>, 

Often times workers have an issue where a decision maker at the WSIB and/or the WSIAT thinks the worker is faking. The false accusation of workers faking by workers compensation officials is more common than many may realize. All is one must do is be able to read between the lines.    

Supreme Court of Canada position:

The Supreme Court of Canada in their decision admitted that workers falsely being accused of faking is extremely commonplace. This was noted in the first paragraph of their decision in Nova Scotia v. Martin, where the Supreme Court of Canada said on the view of injured workers suffering from Chronic Pain that, 

"generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.  While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful.  These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event.  Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians." 

Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54 (CanLII), [2003] 2 SCR 504, at para 1, <https://canlii.ca/t/50dn#par1>

Divisional Court View position:

The Divisional Court heard a judicial review of a WSIAT decision. The court found the WSIAT had ignored all the medical evidence and in its place pout their own opinion. This was because the WSIAT thought the worker was faking. ultimately found in doing so, the tribunal committed two serious errors in their decision, which made the tribunal’s decision unreasonable.
First, the tribunal discounted the medical evidence on file, which was not disputed. In place of the medical evidence, the tribunal made its own personal opinions. The tribunal’s stated justification was that the medical experts did not test for malingering or faking. To this the court responded that the

 “Tribunal engaged in speculation, not legitimate fact finding”.

Another important point noted by the court was that in addition to the Tribunal deciding based on their own personal opinions, the court also noted the tribunal improperly based the worker’s medical abilities on the injured worker being able to retain his driver’s license. 

This is very significant, as decision makers will often make the incorrect and unlawful assumption that if a person still retains a driver’s license they can work and drive with no restrictions.
Second, the court found that the tribunal failed to properly apply the board policy and the board’s determinations that the injured worker was permanently disabled. Most importantly the Court also found that the tribunal and the board committed a serious error by claiming the injured worker was not co-operative, but failed to “take into account the fact that the [injured worker’s] compensable condition is characterized by anxiety, depression, withdrawal, an excessive fear of re-injury, and tendency to avoid any anxiety-creating situations such that the sufferer’s everyday activities become so restricted that they cannot leave the house for frequent intervals. 

Ferreira v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 3437 (CanLII), at para 50, 

https://canlii.ca/t/j0v21#par50

WSIAT's View in Decision 722/20R

The Vice-Chair in 722-20/20R also agreed with the Divisional Court hat decision makers are not doctors and cannot make medical determinations. 

They can only weigh medical evidence; they cannot create it!

 Decision No. 722/20R, 2022 ONWSIAT 1896 (CanLII), <https://canlii.ca/t/jtw33>