Where There Is Smoke, There Isn’t Always a Claim

Firefighting can be a physically and emotionally demanding job, and one that comes with many risks. One of the greatest risks faced is not even from the fire, but from the health effects of smoke.

The leading cause of death for firefighters is heart attacks, which is attributable to about half of all on duty deaths. A 2017 study in the American Heart Association’s journal Circulation attributed this to heart strain due to exposure to extreme heat. The authors drew these conclusions after placing several individuals under stress conditions while monitoring blood flow to the heart.

Ontario’s Workplace Safety and Insurance Act, 1997 (the “Act”) has a specific regulation for firefighters. Section 13 of the Act creates a presumption for a worker who sustains a personal injury arising out of and in the course of their employment, unless the contrary is show. Specific occupational disease provisions under section 15.1 focus on firefighters, including an injury to the heart, as long as it meets the definitions and circumstances laid out in the regulation.

The regulation requires injuries to the heart under the Act to occur within 24 hours of attending a fire scene, or participating in an exercise involving a simulated fire emergency while on duty.

The Ontario Superior Court of Justice Divisional Court recently reviewed in Radzevicius v. Workplace Safety and Insurance Appeals Tribunal a decision by the WSIB of a firefighter who died of a heart attack, denying the worker entitlement. The Tribunal then refused to reconsider its decision. The Divisional Court denied this judicial review, employing the new framework by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. VavilovThe manner in which they did so create some interesting questions about how Vavilov may be applied under complex statutory schemes like the Act.

The firefighter was 47 years old when he died, with his last shift on April 11, 2010, during which he conducted some training. He passed away soon after, on April 13, 2010, from a myocardial infarction due to coronary atherosclerosis.

Approximately 9 weeks prior, on Feb. 7, 2010, the firefighter had attended a call to a building where a hamburger patty placed on a stove burner resulted in a smoke filled apartment. They ventilated the unit, but there was no fire present. The family members claimed he suffered a heart attack at this time, but there was no evidence to substantiate this. An autopsy did show a scar from a previous heart attack, but it was unknown when this occurred.

Because the firefighter did not die within 24 hours of his last shift, WSIB denied the claim, as the presumption did not apply. The existence of other coronary risk factors, such as smoking and high cholesterol, suggested that firefighting duties did not significantly contribute to the worker’s death.

The reconsideration decision emphasized the need for fairness,

[4] As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions, which are reached after a fair hearing process. Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests.

[5] It is instructive to refer to Decision No. 871/02R2’s analysis of the threshold test that a reconsideration request must meet and the reasons for this:

Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal’s power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must:

(a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or

(b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing.

Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened.
[emphasis in original]

The reconsideration request effectively made the same arguments as with the original decision, only supplementing with some internet articles about body mass index, and new medical claims without supporting evidence. They were re-arguing the issues already addressed in the original decision, and did not address the threshold question in any substantive way.

In seeking judicial review, the firefighter’s family claimed the Tribunal acted unreasonably by excluding the statutory rebuttable presumption under s. 15.1, denying the criteria under s. 13, and refusing to consider new evidence under the reconsideration. The Divisional Court rejected these submissions, noting they were not constitutional questions, those of central importance to the legal system, or regarding jurisdictional boundaries, citing Vavilov,

[33] This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister of Labour)2003 SCC 29[2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards…

[53] In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.

The Act contains a strong privative clause, which states,


118 (1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.

In a proposed class action against the Tribunal, Castrillo v. Workplace Safety and Insurance Board, the Ontario Court of Appeal reviewed a decision by a motion judge who struck the statement of claim without leave to amend, as disclosing no cause of action. The motions judge concluded the claim was challenging a decision within the privative clause, and was therefore beyond any court challenge. The court stated,

[59] The motion judge stated his view that the WSIA: “provides a complete and comprehensive code for workplace injury compensation determinations,” which clearly reflects “legislative intent”. He observed that the WSIB and the Appeal Tribunal are protected by “the toughest privative clause known to Ontario law,” citing this court’s description of s. 118 in Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal)2008 ONCA 719, 92 O.R. (3d) 757, at para. 22.

[60] As noted above, the privative clause in the WSIA, s.118, is strongly worded. The motion judge identified the “gist” of the appellant’s claim as this: “the WSIB’s interpretation of the applicable Regulation and what constitutes a ‘pre-existing impairment’ was wrongly decided”. This he interpreted to be the true import of the “language in the statement of claim, [which] includes words such as ‘illegal’ ‘had no legal authority’ [and] ‘contravened the Regulation”. In the motion judge’s view: “This claim falls squarely within the four corners of the privative clause and cannot be considered or reviewed by this Court.” I interpret this decision as accepting WSIB’s argument that the court’s jurisdiction was “ousted” by the privative clause, although the motion judge did not use that word.

Although the Court of Appeal allowed the appeal, finding an overarching error in treating the motion as a summary judgment rather than a motion to strike, they emphasized that as a general principle the legislature cannot completely oust the jurisdiction of the court, even with a strong privative clause. However, these circumstances would require some form of allegations of misfeasance in public office related to statutory power for an improper purpose, which would likely fit under what Vavilov describes as general questions of law of central importance to the legal system as a whole.

In this case, the Divisional Court looked at the reasons of the Tribunal, including the rationale and the outcome, to determine whether it was unreasonable to ensure internal coherency and a rational chain of analysis. A reviewing court is not supposed to interfere with findings of facts, or the weighing of evidence except in exceptional circumstances.

The WSIB is authorized under required under s. 159(2) to establish policies concerning the interpretation and application of the Act, specifically in this context, WSIB Policy 15-03-12, Heart Injuries in Firefighters and Fire Investigatorsand WSIB Policy 15-03-10, Heart Conditions. They are required under s. 126(1) to apply any applicable policies.

The Heart Injuries policy describes a “fire scene” as having the presence of combustion or burning materials. The incident on Feb. 7, 2010, had plenty of smoke, but no actual fire. The court stated,

[29] That is a reasonable conclusion, given the wording of the Policy and the evidence. “Combustion or burning materials” is a requirement, not just the presence of smoke at the scene. It was reasonable for the Tribunal to conclude that there must be a fire in order to have a fire scene. I note that the definition of “combustion” in the Merriam Webster Dictionary (on line edition) is “an act or instance of burning.” The definition of “combustion” in The Oxford Dictionary (on line) is “the process of burning something.”

In applying the Heart Conditions policy, the Tribunal would have to find that the cardiac condition arose from “unusual physical exertion.” Although the firefighter had to go up and down several stairs with a high rise kit, the activity involved was for a maximum of 13 minutes, which would not be unusual in the circumstances,

[45] It was for the Tribunal to decide what would be “unusual physical exertion” for a worker such as the deceased in the course of his employment. The Tribunal reasonably concluded that firefighters have a physically active job, and it sometimes involves climbing flights of stairs. In its view, climbing and descending stairs for 13 minutes was not unusual physical exertion for a firefighter.

[46] The Tribunal also observed that there were non-occupational explanations for the deceased’s death. In particular, there was no evidence that the coronary atherosclerosis and hypertensive cardiomyopathy, discussed in the post-mortem examination report as significant conditions contributing to death, were related to the deceased’s firefighting duties.
[47] The Tribunal found, on a balance of probabilities, that the deceased’s firefighting duties did not significantly contribute to his death. That is a reasonable conclusion, given the legislation and Policies and the evidence. The conclusion is explained logically and coherently. The explanation is brief, but it is sufficient to show why the Tribunal found that the deceased was not entitled to benefits pursuant to s. 13 of the Act.

The Tribunal acted reasonably in refusing to exercise its discretion to order a reconsideration. A reconsideration requires the Tribunal’s threshold test, a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. No such defect was present here.

This decision confirms that despite a reformulation of the review applied by courts of tribunals under Vavilov, it does not constitute a significant change in law. The court pointed to statements in both the majority and dissent to emphasize the respect for administrative decision makers and specialized expertise.

While the majority stated,

[13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

The dissent also said,

[288] First and foremost, deference is an “attitude of the court” conducting reasonableness review (Dunsmuir, at para. 48). Deference mandates respect for the legislative choice to entrust a decision to administrative actors rather than to the courts, and for the important role that administrative decision-makers play in upholding and applying the rule of law (Toronto (City) v. C.U.P.E., Local 792003 SCC 63 (CanLII)[2003] 3 S.C.R. 77, at para. 131, per LeBel J., concurring). Deference also requires respect for administrative decision-makers, their specialized expertise and the institutional setting in which they operate (Dunsmuir, at paras. 48-49). Reviewing courts must pay “respectful attention” to the reasons offered for an administrative decision, make a genuine effort to understand why the decision was made, and give the decision a fair and generous construction in light of the entire record (Newfoundland Nurses, at paras. 11-14 and 17).

[289] Second, deference affects how a court frames the question it must answer when conducting judicial review. A reviewing court does not ask how it would have resolved an issue, but rather, whether the answer provided by the administrative decision-maker has been shown to be unreasonable (Khosa, at paras. 59 and 61-62Dunsmuir, at para. 47). Framing the inquiry in this way ensures that the administrative decision under review is the focus of the analysis.

[291] Third, deferential review impacts how a reviewing court evaluates challenges to an administrative decision. Deference requires the applicant seeking judicial review to bear the onus of showing that the decision was unreasonable (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development)2018 SCC 4 (CanLII)[2018] 1 S.C.R. 83, at para. 108Mission Institution v. Khela2014 SCC 24 (CanLII)[2014] 1 S.C.R. 502, at para. 64May v. Ferndale Institution2005 SCC 82 (CanLII)[2005] 3 S.C.R. 809, at para. 71Ryan, at para. 48Southam, at para. 61; Northern Telecom Ltd. v. Communications Workers of Canada1979 CanLII 3 (SCC)[1980] 1 S.C.R. 115, at p. 130). Focusing on whether the applicant has demonstrated that the decision is unreasonable reinforces the central role that administrative decisions play in a properly deferential review process, and confirms that the decision-maker does not have to persuade the court that its decision is reasonable.

One of the concerns of the dissent in Vavilov was that the creation of a presumption of reasonableness would unduly ignore the specialized expertise of administrative decision-makers. The traditional foundations for deference, including institutional experience, proximity and responsiveness to stakeholders, flexibility and efficiency [paras 29-30], and expertise [para 31], were effectively read out by the majority.

This case illustrates that all of these principles may still indeed be used by a reviewing court, albeit where the statutory scheme is constructed in such a manner as to allow for it. Through the use of a strong privative clause, specific regulations, and the ability to create policy and requirement to follow those policies, the Act maintains and includes all of these traditional foundations for deference.

While these circumstances may not exist in other statutes, it does illustrate that the supposed dichotomy found in Vavilov may not be as pronounced in other contexts, and that the pre-Vavilov cases in administrative law may still have considerable precedential value.

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