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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 576 16
11/21/2016
S. Martel

  • Dependants (foreign)
  • Dependency benefits
  • Election
  • Out of province (dependants)

The worker died in a compensable accident in 1960. His wife and son lived in Argentina at the time of his death. The Board paid $300 for funeral expenses and a $378 lump sum to the widow. In November 2011, the widow sought further benefits. The widow appealed a decision of the Appeals Resolution Officer denying further survivor benefits. The Workmen's Compensation Act in 1960 distinguished between resident and non-resident survivors. Under s. 8(1) of the 1960 Act, non-resident survivors were entitled to the equivalent of the benefits payable to Canadian survivors of a Canadian worker killed in the place where the non-resident survivor lived. This was essentially a reciprocal provision. Payment was only made to a non-resident dependants if there was evidence of reciprocity whereby a dependant in Canada of a worker killed in a country outside Canada would receive compensation. Section 8(2) allowed the Board to award such compensation as it deemed proper. Section 8 was repealed in 1968. The Act was amended to increase monthly pensions to survivors and it removed the distinction between resident and non-resident dependants. However, the repeal and the amendments were not retroactive. The widow submitted that she should have been entitled to an election under s. 7 of the 1960 Act to claim Ontario benefits. The Vice-Chair found that s. 7 applied when a worker worked in multiple jurisdictions such that the worker may have been entitled to claim benefits from more than one jurisdiction. In such a case, the worker was required to elect the jurisdiction in which to seek compensation. Section 7 did not apply in this case, where the worker was employed by an Ontario employer, worked in Ontario and did not work in multiple jurisdictions. Evidence did not support the existence of reciprocity or a compensation package that would have been available to Canadian dependants if a worker was killed on the job in Argentina with Canadian dependants. Accordingly, in this case, the worker's widow was not entitled to benefits under s. 8(1). The Board appears to have paid the widow the amount she would have received if her husband worked and died in Argentina. Thus, the Board appears to have used its discretionary power under s. 8(2) to make that payment. The widow submitted that s. 8(2) could be used to grant further equitable benefits. The Vice-Chair obtained information from the Board that there was no documentary information concerning the Board exercise of its discretion under s. 8(2), but the Board has made payments of $1,500, with the amount not contingent on the number of child dependants, payments were never paid to non-resident survivors in amount equivalent to benefits awarded to Canadian residents. The Vice-Chair agreed that the lump sum of $378 was insufficient to allow a widow and her young child to subsist. By contemporary standards, the amount awarded and the distinction between resident and non-resident survivors is unfair and inequitable. However, that was the legislation at the time. The Board exercised its discretion to grant the lump sum. Although the amount was small, it was the maximum that would have been paid under Argentinian law. The equities of today cannot be applied retroactively to provisions as they existed in 1960. Even amounts paid to Ontario dependants were not adequate prior to 1968. Further, the Vice-Chair noted the widow was objecting to the Board decision 50 years later. Although time limits in the WSIA did not apply directly in this appeal, the legislative intent as of 1998 is to bring closure to claims and not to revisit past discretionary decisions on an indefinite basis. The widow was not entitled to any further benefits. The appeal was dismissed.