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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 699 13 I
11/12/2013
J. Moore - M. Trudeau - R. Briggs

  • Charter of Rights
  • Dependency benefits (calculation) (Canada Pension Plan survivor benefits)

The worker died as a result of an injury he suffered in the course of employment in 2006. The Board paid the spouse survivor benefits under s. 48 of the WSIA but deducted the full amount of CPP survivor benefits received by the spouse. The spouse appealed. Section 48(23) provides that, in calculating the compensation payable by way of periodic payment under s. 48, the Board shall have regard to any payment of survivor benefits for death caused by injury that are received under the Canada Pension Plan. Board policy provides for offset of the s. 48 survivor benefits by 100% of the CPP survivor benefits. The Panel noted the Weiler Report, which stated that the Canada Pension Plan is intended to establish a minimum floor for all Canadian workers and that it was appropriate that provincial workers' compensation serve as the last insurer that makes up the remaining income losses. The rationale of the CPP offset is to avoid double compensation. The spouse submitted that CPP survivor benefits are paid for death in any circumstances, whereas s. 48 survivor benefits are paid for death caused by injury. The Panel stated that s. 48 assesses the measure of the spouse's loss as a result of the death of a worker and compensates the spouse according to the spouse's particular circumstances. The purpose of the periodic payments is to compensate for the financial hardship caused by the worker's death. CPP survivor benefits have the same purpose, but on a lesser scale. While CPP survivor benefits are available to the survivor regardless of the cause of death, there is no question that, in the present case, the triggering event was a death as a result of a workplace accident. The entitlement to CPP survivor benefits arose out of the same event that triggered entitlement s. 48 survivor benefits. The spouse also submitted that s. 48(23) cannot bear the interpretation given it by the Board because it effectively requires the deceased worker's family to fund the benefits they receive from the Board by paying a portion of that compensation through entitlement to CPP survivor benefits. The Panel stated that s. 48(23) clearly intended to require the Board to consider other sources of compensation for the same event. The objective of avoiding double compensation is a valid policy objective. The Board policy of offsetting the s. 48 survivor benefits by 100% of the CPP survivor benefits was consistent with and authorized by the Act. The spouse further submitted in the alternative that only 50% of the CPP survivor benefits should be deducted, to reflect the component of the CPP contributions made by the employer. However, the Panel stated that the contributory element of the CPP survivor benefits is not the linchpin of the entitlement. As opposed to CPP retirement benefits, the CPP survivor benefits are also based on a flat-rate figure and the age of the surviving spouse. The significance of the contributory element is outweighed by the purpose and intent of the benefits, which is to compensate the survivor prospectively for the same loss or death for which s. 48 benefits are paid. The Panel concluded that the Board policy was consistent with and authorized by the Act and that the Board correctly interpreted and applied the policy to offset the s. 48 survivor benefits by 100% of the CPP survivor benefits. The hearing will reconvene to consider submissions of the spouse regarding the Charter of Rights.