Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused on whether three WSIAT decisions about Mr. Kennedy’s workplace injuries and benefit entitlements were reasonable under the Vavilov standard.
• Central evidentiary dispute concerned causation between the October 1, 2008 workplace incident and later symptoms, including headaches, dizziness, post-concussion syndrome, depression, anxiety, PTSD, and chronic pain.
• The tribunal’s acceptance of ongoing entitlement only for a soft tissue temporomandibular joint (TMJ) injury, while rejecting broader physical, psychological, and loss of earnings claims, was challenged as ignoring or misapprehending medical evidence.
• High threshold for WSIAT reconsideration, requiring a fundamental error of law/process or truly new and significant evidence, was applied to reject Mr. Kennedy’s two reconsideration requests as attempts to re-argue the original case.
• Evidence that Mr. Kennedy’s later psychological and neurological symptoms followed a September 2010 car accident, rather than the 2008 workplace injuries, was key to the tribunal’s and court’s causation analysis.
• The Divisional Court deferred to the strong privative clause in the Workplace Safety and Insurance Act and upheld WSIAT’s decisions, dismissing the judicial review with no costs and no quantified monetary award in this judgment.

Background and workplace injuries

Mr. Kennedy worked as a shredding specialist and was injured in two separate workplace incidents in 2008. On August 27, 2008, the arm of a bin tipper, or the bin tipper itself, struck his shoulder, causing a right shoulder injury. That first injury was ultimately not at issue on the judicial review. A second incident occurred on October 1, 2008, when an auger arm of the shredder moved unexpectedly and hit Mr. Kennedy in the facial/head area. He subsequently reported pain, including in his face, ear, and jaw region, and swelling in the temporomandibular joint (TMJ) area.
Mr. Kennedy applied to the Workplace Safety and Insurance Board (the Board) for benefits. The Board recognized a shoulder contusion from the first incident and a facial contusion from the second, but it denied his broader claims for ongoing entitlement regarding his shoulder, face, eyes, ears, headaches and dizziness, as well as entitlement to loss of earnings benefits beyond March 10, 2010, and psycho-traumatic disability benefits.

The WSIAT appeal decision of October 8, 2020

Mr. Kennedy appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In its first decision, dated October 8, 2020, the tribunal allowed his appeal only in part. It upheld the Board’s conclusion that he had not established entitlement to benefits for a permanent impairment to his right shoulder following the August 27, 2008 incident. The tribunal found that the medical evidence did not support an ongoing permanent shoulder impairment arising from that accident.
In relation to the October 1, 2008 incident, the tribunal accepted that the medical evidence showed he had pain and swelling affecting the face, ear, and TMJ area shortly after the accident. It concluded that he had ongoing entitlement for a soft tissue injury to the TMJ and allowed the appeal on that limited basis, referring the nature and extent of that TMJ-related entitlement back to the Board for further determination.
However, WSIAT rejected his claim that the October incident caused headaches, dizziness, post-concussion syndrome and depression. A key evidentiary element was timing: those symptoms were first documented close to a year after the incident. The tribunal also rejected his claim that the workplace injuries caused his loss of earnings after he lost his job in March 2010. It found no medical restrictions arising from the October 1, 2008 accident that would have prevented him from working in his pre-accident field, and therefore he was not entitled to loss of earnings benefits on that basis.
The tribunal further dismissed his claim for psycho-traumatic disability, noting that a psychiatric referral occurred only after a car accident in September 2010. It found that the psychological symptoms were linked to that later car accident rather than the 2008 workplace injuries.

The first reconsideration decision of February 22, 2022

Mr. Kennedy sought reconsideration of the October 8, 2020 decision. He argued that factual clarifications and new medical information warranted revisiting the outcome. Specifically, he asserted that on August 27, 2008, it was the bottom of the bin, not the arm of the bin tipper, that struck his shoulder; that on October 1, 2008, he injured his head and jaw rather than his face; that the first decision misnamed one of the physicians; and that a new report from his doctor attributed his depression, post-concussion syndrome, PTSD and chronic pain to the original 2008 injury.
The tribunal emphasized that reconsideration is a discretionary process and that a high threshold must be met. Reconsideration is reserved for situations involving a fundamental error of law or process that would likely change the result, or where substantial new evidence previously unavailable would likely alter the outcome.
On that framework, WSIAT held that Mr. Kennedy had not met the threshold. It found that the clarifications about whether the bin arm or bottom struck him, and whether the injury was to his face versus head and jaw, did not change the analysis, because the original findings rested on the medical evidence and not on these finer points of description. The tribunal agreed that the physician’s name had been misstated, and it ordered a correction, but held that the substance of that physician’s notes had been correctly reviewed and relied upon in the first decision.
As to the purported new medical report faulting the 2008 incident for his psychological and chronic pain conditions, the tribunal concluded that it did not present a new and unexpected organic or psychological fact of basic importance. Instead, it essentially repeated themes already in the record. As a result, the reconsideration request was dismissed, apart from correcting the physician’s name.

The second reconsideration decision of February 13, 2025

Mr. Kennedy made a further request for reconsideration. This time he argued that his injuries from the October 1, 2008 incident extended beyond the face and TMJ to his head, ear, jaw, neck, and upper back. He again sought entitlement for headaches and dizziness, psycho-traumatic disability, and loss of earnings benefits, relying on the incident report, a narrative of the accident, and various medical records.
The tribunal reviewed both the records previously available and additional medical documents that post-dated the first decision and the first reconsideration decision. It concluded that the newer records did not constitute significant new evidence. In WSIAT’s view, the substantive information they contained had already been before the tribunal in some form and had been considered in the original proceedings.
On this basis, the tribunal characterized the second reconsideration request as another attempt to re-argue the original appeal, rather than to expose a fundamental legal or procedural error or truly new and material evidence. The high threshold for reconsideration was again found not to be met, and the request was dismissed.

Judicial review to the Divisional Court

Mr. Kennedy then brought an application for judicial review of the three WSIAT decisions: the original October 8, 2020 appeal decision and the two reconsideration decisions of February 22, 2022 and February 13, 2025. He alleged that the tribunal’s decisions were unreasonable because, in his view, they failed to properly consider significant medical evidence regarding the scope and consequences of his injuries from the October 1, 2008 incident.
He argued that the tribunal had unreasonably limited its description of the injury to his face, ignoring that he had been struck in the head and that a single, continuous impact had caused serious conditions to the entire region of impact, including concussion, chronic pain, depression, anxiety, PTSD and related symptoms. He contended that WSIAT’s decisions lacked justification and intelligibility and fell outside the range of reasonable outcomes.
The Divisional Court identified reasonableness as the governing standard of review for these administrative decisions, pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov. The Court reiterated that it must start from the tribunal’s reasons and assess whether the decisions, read as a whole, are justified, intelligible and transparent, rather than substituting its own preferred outcome. The Court also emphasized the strong privative clause in the Workplace Safety and Insurance Act, 1997 and the high degree of deference owed to WSIAT decisions, including its discretionary power to reconsider its own decisions.

The court’s assessment of the tribunal’s reasoning and evidence

On the central causation and entitlement issues, the Court found that the original WSIAT decision had carefully reviewed the medical evidence and reasonably concluded that the Board had erred only in its characterization of the facial contusion, properly recognizing an ongoing soft tissue TMJ injury and remitting the nature and extent of that entitlement to the Board. The tribunal had also reasonably determined that the broader symptoms Mr. Kennedy claimed—headaches, dizziness, post-concussion syndrome, depression and other psychological conditions—were not causally related to the October 1, 2008 workplace injury.
The Court noted that much of the evidence on which Mr. Kennedy relied in the judicial review had already been before WSIAT in the first decision and, in any event, was fully before the tribunal by the time of the second reconsideration. WSIAT expressly found that the onset and reporting of the psychological and neurological symptoms coincided with the September 2010 car accident, which occurred a considerable time after the 2008 workplace incident. Its reasons showed how it traced the chronology and content of the medical records to reach that conclusion.
Regarding reconsideration, the Divisional Court accepted the tribunal’s approach that the alleged factual clarifications and later medical notes did not meet the stringent test for new and unexpected evidence of basic importance, and that the reconsideration requests essentially attempted to re-litigate the original appeal. The Court held that WSIAT’s explanations for refusing reconsideration were coherent and transparent and remained within the permissible range of reasonable outcomes.

Outcome, successful party, and monetary consequences

Having reviewed the tribunal’s decisions and reasons, the Divisional Court concluded that they were reasonable. It rejected Mr. Kennedy’s characterization that WSIAT had ignored significant evidence or misconceived the mechanism and scope of his injuries. Instead, the Court found that the decisions adequately considered the evidentiary record, articulated the basis for accepting only the TMJ soft tissue injury as compensable on an ongoing basis, and reasonably rejected the broader physical, psychological, and loss of earnings claims.
Accordingly, the Court dismissed Mr. Kennedy’s application for judicial review. The Workplace Safety and Insurance Appeals Tribunal, as respondent, was the successful party in the proceeding. The tribunal did not seek costs, and the Court ordered none. No damages or other monetary relief were awarded in this judgment, and the decision does not quantify any specific benefit amount related to Mr. Kennedy’s TMJ entitlement that had been remitted to the Board. As a result, the total monetary award, costs, or damages granted or ordered in this court decision is effectively zero, and any precise amount of workers’ compensation benefits payable cannot be determined from this judgment alone.