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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 829 10
12/4/2013
T. Mitchinson - A. Lust - R. Briggs

  • Charter of Rights (equality rights)
  • Human rights
  • Supplements, transitional provisions (calculation) (Canada Pension Plan)

In Decision No. 829/10I, the Panel dealt with the substantive issues on the worker's appeal. In this decision, the Panel considered issues raised by the worker concerning the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. The Tribunal has jurisdiction to consider and apply the equality rights provisions in s. 15(1) of the Charter. This jurisdiction also applies to the Human Rights Code. It is up to the party raising the Charter and Code issues to provide detailed explanation and argument as to which provisions of the Charter or Code are at issue and how specific provisions of the workplace insurance legislation or Board policy operate in a way that would offend the Charter or the Code. There are limits on a tribunal's ability to grant a remedy. In the case of the Tribunal, remedies available on appeal are outlined in s. 123(3) of the WSIA, which are to confirm, vary or reverse a Board decision, but the Tribunal does not have authority to award damages or other remedies. The Panel noted that the worker was unrepresented. His oral and written submissions fell short of the requirement and expectation to address the legal and jurisdictional issues stemming from the claim. Further, he was not able to specify the nature of the violation and what remedy the Tribunal should provide. None the less, the Panel felt it incumbent to determine whether a Charter of Human Rights code violation was present on the basis of both the worker's submissions and the Panel's independent assessment of the evidence and arguments. The worker made allegations regarding a number of provisions but there was no adequate basis to consider that they violated the Charter or Code. The allegation that the Panel considered in more detail was regarding the offset of CPP disability benefits from supplementary benefits under s. 147(4) of the pre-1997 Act. The Supreme Court of Canada set out a two-part test for determining whether there is discrimination under s. 15(1) of the Charter: 1) whether the law creates a distinction based on an enumerated or analogous ground; 2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping. Both parts of the test must be established in order to conclude that there has been a breach of s. 15(1) of the Charter. Injured workers who receive s. 147 supplements but do not receive CPP disability benefits, or who receive CPP disability benefits for reasons unrelated to work, can receive a full supplement, while workers who are entitled to s. 147 supplements and receive CPP disability benefits for a workplace injury have CPP benefits deducted. However, this distinction is based on whether the individual is receiving benefits for the same injury and under another scheme and does not appear to be based on the nature of the disability. Thus, the distinction is not based on an enumerated ground. The purpose of s. 147(4) is not income replacement, per se, but to top up by a set amount the pension for injured workers who are not able to restore their pre-injury earning capacity. Section 43(7) requires the Board to have regard to any CPP disability payments a worker may receive for the injury in determining the amount the worker is likely to be able to earn in suitable and available employment. The Board has developed policies on how it will have regard to the CPP benefits in this context. The purpose underlying the Board policy to offset s. 147 benefits by the amount of CPP disability benefits is to avoid overcompensation. When this underlying purpose is considered in the context of the compensation scheme as a whole, taking into account that the Board is the last insurer, the Panel was not persuaded that the offsetting results in any substantive discrimination. The Panel concluded that the challenge under the Charter of Rights and Human Rights code should be dismissed.