My Second Attempt at Judicial Review - Mandamus:
I, like most injured workers, pay a lot of money for things to help me manage with mobility pain and other aspects of my work injuries. However, in September of 2017, I had come the realization that I was actually paying a lot of money for over the counter pain medications and topical pain creams. I sent a request to the WSIB (Ontario WCB) to be compensated for these out of pocket expenses.
Here is the funny part of how the WSIB works...
I had not heard from the WSIB regarding my request for sometime. Then around mid October 2017, I received two letters on the same day. One was dated for almost two weeks prior and the other one was dated for about four or five days prior. Of course, I opened letters to learn the first one, the older dated one was a request for me to take the letter to my doctor to obtain medical information, as to the reason why I need these medications, which I have requested coverage for. The second letter here is the funny part, states that based on the information on file they denied my request. This actually made me laugh, as they had not even received the information from me they requested.
So, regardless of the second decision letter, I took the two letters to my doctor and had her complete a report the WSIB required even though she said Paul why should I bother they already made their decision and they based it on ten year old information. I kindly asked her to complete the request and send it in and make sure she got paid for her time.
Here the story gets even more hilarious...
So, as I said I made a request for over the counter medications, but they were covering my prescription medications. The decision letter they sent made no mention of prescription medications, or that they were being denied or anything. Nor di they reference any policy or law. This is a common tactic of a draconian society which controls its people when they provide no explanation for their decisions.
Then after a month or so, while I am awaiting the decision to go to the appeal branch, I go to the drugstore and I am told that the WSIB is no longer covering ANY of my prescription medications.
This is actually hilarious!
Now some would say, Paul this is not funny they are retaliating against you because you made the request for over the counter medications. You should have kept your mouth shut and not done anything.
Of course I am laughing, as while I needed the over the counter medications covered, I was testing out an ideal of being able to use a Judicial Review-Writ of mandamus to deal with the massive delays in the workers compensation system. So my plan was to request a decision and then knowing the decision process would take forever, (it took 15 years to get a final decision from the WSIAT!) So I am fully aware of the delays. As I now know they retaliated against me and I could not have asked for anything better! As it now solidifies my need for a Mandamus application to be heard right away. It confirms the matter is of utmost urgency, as I need the meds.
My Response to the WSIB & the WSIAT Court Filings:
I have placed all my materials regarding my appeals to the Court of Appeal for Ontario on a separate page for better organization to see my appeal for the Judicial Review - Writ of Mandamus.
Go to 'My Story' then click on My Story-Ontario Appeal Court.
So, I read the WSIB and the WSIAT's materials and specifically the
Affidavits which are in support of their arguments.
As a result, I prepared an affidavit with supporting documents,
which is in response to these two affidavits.
To see my responding affidavit and supporting documents
click on the box above.
Click on the box above to see my Book of Authorities.
This is a list of all the court cases I am relying on in my legal arguments above
the Motion Factum and my Application Factum.
This is referred to as "Common law"
Please note the pdf document has a large file size pdf of 20.4 meg.
It may take sometime to download.
My Court filings:
Superior Court vs. Divisional Court:
Ok so before I prepared my Application for Judicial Review - Writ of Mandamus there is a problem with getting heard by the court. Now one of the problems with filing a Judicial Review, is that in most jurisdictions the Divisional Court meets once or twice a year. Many would say that is not fair, how an injured worker would have to wait that long for justice! This was actually covered within the law in Ontario in the Judicial Procedures Act. Where it states the following:
"Application to Divisional Court
6. (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court. R.S.O. 1990, c. J.1,
s. 6 (1).
Application to judge of Superior Court of Justice
(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which
may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of
urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
R.S.O. 1990, c. J.1, s. 6 (2); 2006, c. 19, Sched. C, s. 1 (1).
So if a person can say that the delay to wait for the divisional court to sit is so long that justice would fail, then the Superior Court in motions court must hear the matter. Motions in Superior court are heard in every jurisdiction at least once a week. So you can now see and understand why I choose to seek action in Superior Court as opposed to Divisional Court. Not to mention if my motion fails the matter is not heard by Superior court, but then is transferred to Divisional Court.
Now in order to do this one need to prepare several documents:
Click on the box to the above, to see my Application Record
it will open in a new window as a PDF document.
It contains my:
Application for Judicial Review - Writ of Mandamus
Notice for Motion for Leave to the Superior Court
This is to have my Judicial application heard
by the Superior Court, as opposed to Divisional Court, due to urgency
Notice of Constitutional Question
In my Constitutional Question I argue
the institutional delays within the workers compensation
system are a violation of
the Magna Carta - 1215,
and Sections 2, 7, 11, 12, 15, 91 and 92 under
the Constitution of Canada - 1982
My Affidavit & Supporting Documents in Support of
my Motion and Application for Judicial Review
This is where I get to tell my story and
backup what I say with supporting documents
Please note it is a large pdf file 23.7 meg.
So, for you to have a better understanding of how to prepare your own documents for court,
I have provided PDF electronic copies of my documents below.
You will need Adobe PDF reader which can be downloaded for free at Adobe.com
To see the courts document books,which have been filed with the various courts,
simply click on the appropriate boxes to download the books.
Please note some files maybe large and take time to download
Click on the box above to see my Factum for my Application
for Judicial Review - Writ of Mandamus
This is my legal arguments where I am simply asking the Court
to order the WSIB to hold an appeal hearing within five days
of the court's decision and then the WSIB is to render a decision within five days after that.
If I decide to appeal it to the WSIAT they must hold
a hearing within five days after my request for appeal to WSIAT and
render a decision five days after that.
The Court's Outcome:
My Court Filings:
These are the documents I filed in support of my application for
Judicial Review - Writ of Mandamus
Justice Delayed to Injured Workers, is Justice Denied to Injured Workers!
Well I argued the best I could! I was quit impassioned in my pleas to the Superior Court Judge.
Unfortunately, my pleas for justice for injured workers fell completely on deaf ears.
Even though, the judge got close to admitting there was a hint of retaliation on the part of the WSIB against me, madam honour would refuse to go down the road
to allow justice not just for me and I was very clear in that, for all injured workers.
It truly is a very sad day for Canada's Justice system, when justice is denied to injured workers!
Justice Delayed to Injured Workers, is Justice Denied to Injured Workers!
You can read madam Honour's Decision here
Click on the box above to see my Motion Factum
This is my legal arguments for the Superior Court
to hear my Application for Judicial Review,
as opposed to the Divisional Court.
Madam Honour Justice Petersen has sent a very clear message to the workers compensation systems throughout Canada that is the WCBs:
Do what you like, How you like, When you like, to any injured worker you like,
without accountability or reprisal!
This is something as a Proud Canadian I will not stand for!
Therefore, I respectfully appealed Madam Honour's Justice Petersen's decision
to the Court of Appeal for Ontario, where I anticipate it too will be denied.
It will then, with the many other appeals be headed to the Supreme Court of Canada!
The WSIB Court Filings:
The WSIAT Court Filings:
In Canada, most Provincial and Territorial jurisdictions have a written law, which allows for Judicial review, as well as the Federal jurisdiction.
This may also be the case in other common law countries such as:
United Kingdom, Australia, the united Sates and many others.
While the procedures and explanations are done in Ontario Canada they can be applied to most other provinces, States of other countries. Just review the applicable laws.
What is Judicial Review:
According to Duhaime's Law Dictionary a Judicial review is: "a process where a court of law is asked to rule on the appropriateness of the decision of an administrative agency or tribunal."
Duhaime's Law Dictionary goes on to explain that "Judicial review is a "user friendly" term used by many jurisdictions to encompass the more traditionally-named remedies of mandamus, prohibition,certiorari and habeas corpus.
Forms of Judicial Review:
Mandamus is Latin for "we command thee". This is a part of Judicial Review which can be used if an administrative board and/or tribunal is refusing to perform their duties as prescribed by law.
So for example one of the greatest problems with WCBs in Canada is the massive delays with rendering decisions. The delays he causes severe emotional, physical, and financial hardship to injured workers and their families.
These delays believe it or not actually cause taxpayers financial hardships as well. This is when injured workers are forced onto taxpayer funded social programs, because injured workers & their families are forced to wait unreasonable amount of times for hearings to be scheduled, and decisions to be rendered. For example, in a press release I issued in 2016, I documented that more than 1,400 injured workers on average every month are forced onto welfare due to delays and legitimate claims being denied form the Ontario workers compensation system.
What is even more significant is that these delays are intentional in nature! The delays could easily be stopped or reduced. Remember the workers compensation system, unlike other taxpayer funded social programs is NOT funded by taxpayers, therefore there is no reason aside from a profit driven need to reduce costs to cause more delays. In essence what is happening in Ontario and likely in most other jurisdictions is the cost transference of workplace injuries from employers to taxpayers. Therefore, I am using a application for Judicial review - Writ of Mandamus to make in hopes of making a positive change for injured workers and taxpayers. I plan to do this by stopping the lengthy delays. a positive change.
You can read more about what I have done and how to utilize a Writ of Mandamus below under the heading of my second attempt at Judicial Review - Writ of Mandamus.
Prohibition is when the courts are asked by an individual to prevent an administrative Board and/or tribunal from doing something. It is rarely ever used as usually injured want the Board and/or tribunal to do something as opposed not to do something. Another common term would be an injunction.
Certiorari is Latin for "to be informed of, or to be made certain in regard to". It is used when a injured worker makes a request to the courts to review a decision of an administrative board and/or tribunal on the basis that the decision maker committed an "error of law". Certiorari is the most common use of Judicial Review. It is extremely important to know the difference between an error of law and an error of fact, when making a request for Judicial Review - Certiorari. This is something that injured workers could use after they have received their final decision from the Tribunal. I also strongly suggest that before considering a Judicial Review that you first consider requesting a reconsideration a tribunal decision and provide new arguments on how the decision was made in an error of law.
Intially this was not used or allowed by the courts, but over the past few years the courts have become somewhat receptive to the use. This is regardless of what the law on workers compensation states on the authority of the courts and review of tribunal decisions.
This is what I used in my first attempt. However I filed in the incorrect court, but before refiling I decided to instead file a civil lawsuit against the WSIAT and the WSIB, which is allowed. However for some reason the Court of Appeal for Ontario disagrees with my reasoning. This will also be what I use or have used in my third attempt for Judicial Review which will be discussed below.
This involves the unlawful detention of a person, where they feel they are being held without trial. They would file this and the court order the person to be brought before the court to be held for trial. While in many cases injured workers feel like prisoners, when dealing with the WCB, this does not apply to injured workers, but I mentioned it for your own benefit.
This is my story of my dealings with
the Judicial Review Process and the courts.
It is extremely important for injured workers to understand what possible options they may have after a final tribunal decision.
As well as or alternatively what legal options they may have if they are experiencing severe difficulties from the administrative board and/or tribunals.
Learning what Judicial Review is, the different parts of it, as well as how to use it effectively, may allow an injured worker's final decisions of the Tribunal to be changed or sent back for rehearing and reversed. It may also help the injured worker to get the WCB and/or the WCTs to move things along if they are taking to long to
schedule a hearing and/or render a decision.
It should be noted that up and until a few years ago Judicial Review was not used or more accurately not accepted by the courts.
You should now that the courts are rather hesitant on using Judicial Review. It is like the courts are the 'big brother' to the administrative boards & tribunals and really don't like taking action against heir own.
As I say, at every higher level of appeal you go through, it becomes even harder to win.
In some cases it is virtually impossible to get your decision reversed or changed.
This is why it is always best to do your best at the lower decision levels.
My Attempts at Judicial Review:
Below I have discussed my various attempts at Judicial review and provide the materials I used to help you understand how to file your own Judicial Review.
My First Attempt at Judicial Review - Certiorari:
After I received the final decision from the WSIAT (Ontario's WCT), I decided to file for judicial review of the WSIAT decision. This is where I was requesting the court review the WSIAT decision. However, after I filed the Judicial Review I learned that I had filed it in the wrong court. I had filed it in Ontario Superior Court of Justice as opposed to correctly filing it with the Ontario Superior Court of Justice - Divisional Court. Yes, before you ask, the Divisional Court is in fact part of the Superior Court. In fact every judge of the Superior Court is a judge of the Divisional Court. This is also the case for the court clerks as well. This will become important when I discuss my mandamus Application in my second attempt for Judicial Review. At any rate, after some thought, I decided to withdraw my application for Judicial Review and decided to file for a civil lawsuit instead against the WSIB and the WSIAT (no staff members as you will see when you read that section of the website). I made many mistakes, but in the process I learned a lot, which I hope you will be able to learn from.