A proposed class action challenging the constitutionality of workers’ compensation regimes across Canada has been stalled after the Ontario Superior Court of Justice ruled that the lead plaintiffs must retain legal counsel to proceed.
The court found that self-represented litigants could not adequately represent the interests of the proposed class, citing Rule 15.01(1) of the Ontario Rules of Civil Procedure, which requires representative plaintiffs in class actions to be represented by a lawyer.
The case, launched in 2021, was spearheaded by P.T., who described himself as the main contact and self-representative for the lead plaintiffs. The plaintiffs alleged that various workers’ compensation boards and appeal tribunals across Canada engaged in unconstitutional practices, including the use of deeming provisions, paid doctors, pre-existing conditions, systemic delays, and age-based discrimination.
They sought a declaration that the current workers’ compensation regimes violate the Canadian Charter of Rights and Freedoms and requested damages of $45 million.
The defendants, including the Workplace Safety and Insurance Board (WSIB) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT), filed a motion to dismiss the action due to non-compliance with Rule 15.01(1). They also sought dismissal or a stay of proceedings unless P.T. paid outstanding legal costs from previous litigation.
The court ruled in favour of the defendants, emphasizing that class proceedings require legal counsel to ensure fair representation of all class members. The judge cited Fenn v. Ontario, a 2004 decision confirming that representative plaintiffs in class actions must be represented by counsel due to the complexities of class proceedings and the need to safeguard class members’ interests.
“The general policy reflected in Rule 15.01(1) is reinforced by the need to ensure that a representative plaintiff does not consider their own interests to the exclusion of the interests of members of a class,” the court noted, adding that class counsel plays an integral role in sustaining the litigation.
The court rejected the plaintiffs’ request to waive the requirement for legal representation, finding that their claims involved significant Charter arguments that necessitated professional legal assistance. The judge also pointed to deficiencies in the statement of claim, including a lack of specificity in the allegations and an absence of supporting particulars, stating that “generalizations as to perceived unfairness and Charter breaches do not suffice.”
Additionally, the court found P.T. unsuitable to act as a representative plaintiff, citing his history of unsuccessful litigation on similar issues. The court noted that he had previously challenged the constitutionality of WSIB and WSIAT decisions in multiple actions dating back to 2014, all of which had been dismissed, including appeals to the Supreme Court of Canada. The judge characterized the latest proceedings as an attempt to relitigate previously decided matters, stating that P.T.’s “propensity to initiate abusive litigation” raised concerns about his ability to represent the class.
The court also highlighted P.T.’s failure to satisfy cost orders from previous litigation, including $15,750 owed to WSIAT and a similar amount owed to WSIB. The judge underscored that adherence to cost orders is a fundamental obligation, emphasizing that “respect and support for self-represented litigants does not mean that the interests of adverse parties to a fair process, or the court’s due process requirements, are to be ignored.”
In addition to opposing the requirement for legal counsel, the plaintiffs sought an order for WSIB to fund their legal representation or appoint amicus curiae (court-appointed counsel) to assist them. The court denied both requests, ruling that amicus curiae is intended to assist the court, not self-represented litigants. The judge also found no statutory authority under the Workplace Safety and Insurance Act to support WSIB funding litigation against itself.
The plaintiffs further requested an interim advance cost award to cover legal fees, arguing that their financial status should not be a barrier to advancing their claims. The court dismissed the request, applying the Okanagan Indian Band test for interim cost awards and finding that the plaintiffs had not demonstrated an inability to fund the litigation or exhausted other realistic options, such as contingency fee arrangements.
As a result of the decision, the court stayed the proceedings, granting the plaintiffs 120 days to retain counsel. If they fail to do so, the defendants may move to have the action dismissed. The court also invited the parties to agree on costs, failing which written submissions may be filed within 14 days.
For more information, see Toombs et al. v. Worksafe BC et al., 2025 ONSC 1379 (CanLII).
