A former heavy equipment operator for the Yukon Department of Highways and Public Works, who was declared a vexatious litigant in a 2018, has lost her bid to have her case against the Occupational Health and Safety Branch of the Yukon Workers’ Compensation Health and Safety Board reopened.
The Court of Appeal for Yukon upheld previous rulings that her fresh evidence did not meet the legal threshold to warrant a new hearing.
J.W. had her employment terminated in 2015 during her probationary period. Her efforts to challenge this termination have spanned multiple legal avenues, all of which have been unsuccessful. This latest attempt was to present new evidence in an appeal that had already been concluded.
Background and procedural history
J.W. was hired by the Government of Yukon in February 2014 and was terminated a year later for what the Department cited as unsuitability for continued employment. Since her dismissal, J.W. has pursued numerous legal actions, including appeals, complaints to the Yukon Workers’ Compensation Health and Safety Board, the Yukon Human Rights Commission, and even private prosecutions, all to no avail.
Her initial appeal against her termination was dismissed by the Deputy Minister of the Department of Highways and Public Works in 2015. Subsequent appeals and complaints, including those filed with the Workers’ Compensation Health and Safety Board and the Human Rights Commission, were similarly dismissed.
Her persistence led to a vexatious litigant order, which requires her to obtain court permission before filing further legal actions.
Court of appeal ruling
In her latest application, J.W. sought to introduce new evidence from a report by the Yukon Workers’ Safety and Compensation Board. This report, published in 2020, discussed public feedback on updating the Workers’ Compensation Act and the Occupational Health and Safety Act, and included recommendations for improving the process for handling prohibited reprisals.
However, Chief Justice Marchand found that this evidence did not meet the criteria established by the Supreme Court of Canada in Palmer v. The Queen. Specifically, the evidence did not bear on a decisive issue in the original trial and could not have affected the outcome.
He emphasized that the report’s recommendations did not conflict with the court’s prior interpretations of the Occupational Health and Safety Act.
“The test for admitting fresh evidence was set out by the Supreme Court of Canada in Palmer at 775,” Chief Justice Marchand stated. He further explained that J.W.’s new evidence failed the fourth criterion of this test, which requires that the evidence, if believed, could have reasonably affected the trial’s result.
Legal implications
Chief Justice Marchand noted that even if J.W.’s interpretation of the report was correct, it would not have changed the legal outcome of her previous appeal. The court maintained that the safety officer had validly exercised discretion in not prosecuting her complaint and that this decision was final.
“Respectfully, that outcome is final,” Marchand concluded, dismissing J.W.’s application. He also reaffirmed that her previous opportunities for internal appeal and judicial review had already provided her ample legal recourse.
As it stands, J.W. remains barred from initiating new proceedings without court approval, a status that reflects the broader judicial effort to manage and mitigate vexatious litigation.
“Again, I understand (her) loss of employment with the Yukon Department of Highways and Public Works has been difficult for her,” said Justice Marchand. “But, respectfully, her application for leave to re-open appeal YU825 and adduce fresh evidence is misguided and I dismiss it.”
For more information see Wood v. Yukon, 2024 YKCA 8 (CanLII).
