Executive Summary: Key Legal and Evidentiary Issues

• Rule 15.01(1) requires representative plaintiffs in class actions to be represented by legal counsel; this requirement was not met.

• The court found the statement of claim lacked factual specificity and legal grounding, rendering it procedurally and substantively deficient.

• Paul Taylor was deemed unsuitable to represent the proposed class due to prior failed litigation, disregard of court orders, and abusive procedural conduct.

• There is no legal basis under section 176 of the Workplace Safety and Insurance Act for WSIB to fund litigation against itself.

• The court declined to appoint amicus curiae, finding the role is to assist the court, not to act as counsel for a litigant.

• Plaintiffs failed to satisfy the threshold for an interim advance cost award, particularly the requirement of proving financial incapacity.

Background and procedural context

The case of Toombs et al. v. Worksafe BC et al., heard before the Ontario Superior Court of Justice, involves a proposed class action launched on August 16, 2021, by a group of self-represented plaintiffs led by Paul Taylor. The plaintiffs challenged the constitutionality of workers’ compensation regimes across all Canadian provinces and territories, naming over 25 workers’ compensation boards and appeal tribunals as defendants. They alleged that these bodies violated various sections of the Canadian Charter of Rights and Freedoms—including sections 2(b), 7, 12, 14, and 15—through practices such as the use of deeming provisions, paid doctors, consideration of pre-existing conditions, systemic delays, and age-based discrimination. The claim sought $45 million in damages and the transformation of the current system into a no-fault model.

Motions by the parties

The plaintiffs, led by Mr. Taylor, brought a motion under Rule 37 of the Rules of Civil Procedure seeking an order requiring the Workplace Safety and Insurance Board (WSIB) to pay their legal costs. In the alternative, they requested the appointment of amicus curiae to represent them or permission for the self-represented lead plaintiffs to act on behalf of the proposed class.

The WSIB and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) brought a cross-motion seeking to dismiss the claim for non-compliance with Rule 15.01(1), which mandates that representative parties in class actions must be represented by a lawyer. In the alternative, they sought dismissal or a stay of proceedings if the plaintiffs failed to pay costs previously ordered.

Court’s analysis and ruling on representation

The court emphasized that Rule 15.01(1) applies strictly to class proceedings, as reinforced in Fenn v. Ontario, and that compliance is not optional. Justice Valente found that the statement of claim, authored by Mr. Taylor, was deficient and lacked sufficient factual allegations to support the Charter claims. The court noted that the general and unsupported allegations failed to meet the required pleading standard, especially in constitutional litigation.

Justice Valente also considered Mr. Taylor’s extensive history of prior failed litigation involving similar Charter arguments against WSIB and WSIAT, including matters previously dismissed by the Superior Court, the Court of Appeal, and the Supreme Court of Canada. The court concluded that this class action constituted a collateral attack on those decisions. Mr. Taylor had also failed to comply with multiple cost orders, some outstanding for more than a decade, and had filed abusive or frivolous motions within the current proceeding.

The court determined that Mr. Taylor was unfit to act as a representative plaintiff due to his litigation conduct, lack of legal qualifications, and inability to meet fiduciary obligations to the class. The action was therefore stayed pending the plaintiffs’ compliance with Rule 15.01(1), with the court allowing 120 days for them to retain counsel before permitting the defendants to seek dismissal.

Relief sought under section 176 WSIA and amicus curiae

Mr. Taylor’s argument that WSIB should fund the plaintiffs’ legal representation under section 176 of the Workplace Safety and Insurance Act was rejected. Justice Valente clarified that section 176 only provides for the Office of the Worker Adviser and the Employer Adviser and does not authorize payment of legal fees for litigation against WSIB.

The court also refused to appoint amicus curiae, citing the Ontario Court of Appeal’s decision in Morwald-Benevides v. Benevides. The court emphasized that amicus is appointed to assist the court, not to provide representation to a litigant. The judge found no exceptional circumstances warranting such an appointment at this early stage in the proceeding.

Interim advance costs

Mr. Taylor also sought an interim advance cost award under the framework set out in British Columbia (Minister of Forests) v. Okanagan Indian Band. The court declined to grant the award, finding the plaintiffs failed to meet the first condition—that they could not afford litigation and had no alternative means to bring the case. The plaintiffs provided no financial disclosure, and there was no evidence that contingency fee arrangements, which are common in class actions, had been meaningfully pursued.

Costs decision

Following his March 5, 2025 decision (2025 ONSC 1379), Justice Valente issued a costs ruling on April 2, 2025 (2025 ONSC 1988). Although the WSIB and WSIAT each sought partial indemnity costs exceeding $5,000, they asked only for $2,500 each. Mr. Taylor opposed any cost order, arguing public interest and disability accommodations, but the court rejected these grounds.

Justice Valente found that Mr. Taylor’s actions—including attempts to examine non-parties under summons, repeated litigation delays, and complex, unfounded motions—had unnecessarily increased the defendants’ legal costs. The court ruled there were no special circumstances justifying a departure from the general rule that costs follow the event.

Mr. Taylor was therefore ordered to pay $2,500 each to the WSIB and WSIAT within 60 days.

Conclusion

The proposed class action remains stayed until the plaintiffs comply with Rule 15.01(1) by retaining legal counsel. If they fail to do so within the prescribed 120-day period, the defendants are permitted to bring a motion for dismissal. The court reaffirmed the principle that class actions must be conducted with procedural integrity, legal representation, and adherence to prior judicial determinations.