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Worker who injured knee granted permission to appeal ruling 10 years after statutory objection period expired

by HR Law Canada

A recent ruling by Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) has granted a worker permission to challenge a workplace injury decision nearly 10 years after the statutory objection period had expired.

The case revolves around a decades-old knee injury claim that was initially denied continued benefits by the Workplace Safety and Insurance Board (WSIB).

What happened

The dispute originated with a 2012 WSIB Case Manager (CM) decision involving a worker identified only by initials, referred to here as W. The worker’s representative argued that W. had suffered a workplace injury to the knee that led to ongoing impairment. According to the WSIB’s original findings, the injury “aggravated a pre-existing condition” and had healed, with the Board concluding that W. was restored to the “pre-injury state.”

As a result, the WSIB stopped benefits. In that determination, the CM stated: “It was likely that the Injury of December 19, 2011 aggravated your underlying pre-existing condition.”

W. did not object to the CM’s ruling within the time limit then in force. Under section 120(1) of the Workplace Safety and Insurance Act, 1997 (WSIA), an individual generally must file a notice of objection within a set number of days or months after a decision is made.

Confusion and misunderstandings

Extensions can be granted, but in practice, long delays are uncommon and often subject to scrutiny. By the time W. finally filed an objection, nearly a decade had passed since the time limit lapsed. Despite this significant delay, the worker’s counsel maintained that it resulted, in part, from confusion and misunderstandings about W.’s appeal rights and from reliance on statements made by the WSIB, which W. took to indicate that “the aggravation had ceased.”

According to the Tribunal, “The worker’s representative concedes that there was no expression of the intent to object … within the time limit.” Still, the Vice-Chair took a broad, holistic approach, noting the importance of fairness in such matters. The Tribunal referenced factors drawn from Ontario Court of Appeal decisions in Laski v. Laski and Cunningham v. Hutchings, which call for a case-by-case examination of issues like whether the appellant intended to appeal at the time, how long the delay lasted, the reasons behind it, whether it caused prejudice to the responding party, and whether the claim on the merits has at least an arguable basis.

In assessing those factors, the Tribunal recognized the unusual length of time — about nine years and nine months — that had passed since the original six-month statutory period ended.

It noted that the objection was “significantly beyond the time limit.” However, the Tribunal also found that the issue under dispute — whether W. truly recovered to a pre-injury state or not — could still be determined based on existing medical evidence. As stated in the decision, “These are issues that would largely be resolved based on the medical evidence, which is preserved in the WSIB file.” Even after all these years, the relevant documentation remains intact, and W. remains available to give testimony.

No disadvantage for employer

A key element in the Tribunal’s reasoning was its finding that the extensive delay did not place the employer at a disadvantage. According to a WSIB file memorandum, the employer’s account became inactive because the business ceased operations around the time the original decision was made.

As the Tribunal explained, “The employer’s business ceased two months before the March 2012 CM decision at issue.” With the employer no longer operating and not participating in the proceeding, the potential for prejudice to the employer’s interests appeared minimal.

In addition, the Vice-Chair took into account the fact that W. was self-represented at the time of the original decision and objection period. Without professional guidance, the worker may have misunderstood the right to appeal and the process for lodging an objection. The decision states: “I accept the worker’s explanation, noting that the worker was self-represented … My review of the WSIB file memoranda … does not show any recorded discussions … explaining the March 2, 2012 decision or the appeals process.” The Tribunal found it plausible that the worker simply did not comprehend that there were legal pathways to challenge the Board’s conclusions.

‘Arguable case’

Another factor weighing in W.’s favour was the presence of “an arguable case.” While the Tribunal was clear that it was not addressing the underlying entitlement issues at this stage, it acknowledged that from the worker’s perspective, the matter—an alleged ongoing impairment—warranted consideration.

The decision states, “Based on my review of the worker’s affidavit and the WSIB file … I find the worker has an arguable case for his appeal.” The presence of a potentially meritorious issue supported the Tribunal’s inclination to allow the late objection.

Constitutional and human rights questions

Alongside the main procedural issue, W. had also filed a Notice of Constitutional Question and a Notice of Human Rights Question, both challenging the application of WSIA section 120 and alleging conflicts with the Charter of Rights and Freedoms and the Human Rights Code. The Tribunal, however, declined to address these arguments. Its practice direction requires first resolving the time extension matter on conventional grounds — here, the statutory framework and policy considerations — before moving on to constitutional and human rights claims. Since it decided to grant the extension, the need to weigh in on the constitutional and human rights questions fell away. In the words of the decision, “Since I have allowed the worker’s appeal on the time extension issue … it is not necessary to decide the Charter and Human Rights issues.”

Not precedent-setting

In granting the extension, the Tribunal did not describe the ruling as precedent-setting. Rather, it applied a careful, fact-driven analysis that considered the available evidence and the unique circumstances of the case. The decision underscores that granting a time extension is unusual when a delay lasts for so many years, but it is not impossible. Even after the passage of nearly a decade, the Tribunal determined that the original claim could be fairly reviewed.

In the end, the Tribunal allowed W.’s request for a time extension to object. With that, the worker will have the opportunity to revisit the original claim decision — long after it was initially pronounced — under the applicable legislation and WSIB policy.

For more information, see Decision No. 308/24, 2024 ONWSIAT 1529 (CanLII).

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