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Overview of 2008 Noteworthy Decisions

This paper reviews some of the many interesting legal, factual and medical issues considered by the Tribunal in 2008.

The Tribunal decides cases under four different Acts. The Workplace Safety and Insurance Act, 1997 (WSIA) came into force on January 1, 1998. It establishes a system of workplace insurance for accidents occurring after 1997, and amends and continues the pre-1985, pre-1989 and pre-1997 Workers’ Compensation Acts for prior injuries. Effective November 26, 2002 the Government Efficiency Act, 2002 (GEA), amended certain provisions in the WSIA and pre-1997 Act. In 2007, the WSIA and pre-1997 Act were amended by Schedule 41 of the Budget Measures and Interim Appropriation Act, 2007, effective July 1, 2007. The Workplace Safety and Insurance Amendment Act (Presumptions for Firefighters), 2007, also came into effect in 2007. Finally, the Workplace Safety and Insurance Amendment Act, 2008, regarding mandatory coverage in the construction industry, received Royal Assent in November 2008.

Appeals Under the WSIA

The WSIA provides for a single loss of earnings (LOE) benefit which is reviewable for a period of 72 months on “material change of circumstances” or annually at the Board’s discretion. The amount of a worker’s LOE benefits depends on the extent to which the worker can return to the work force and replace his pre-injury earnings. The WSIA emphasizes the need for co-operation by the workplace parties in facilitating the worker’s early and safe return to work (ESRTW). If ESRTW is not possible, the Board conducts a labour market re-entry (LMR) assessment and may offer an LMR plan to assist in identifying a suitable employment or business (SEB). The worker’s LOE benefits are assessed in light of this SEB. The WSIA also provides for non-economic loss (NEL) awards for workers with permanent impairment.

Since LOE benefits are tied to the loss of earnings resulting from a compensable accident, LOE benefits are generally not payable to workers after they have retired. There is an exception where the worker has not withdrawn from the work force but intends to keep working despite his retirement. Two cases in 2008 raised the question of how the LOE benefit scheme applied to workers who develop long-latency occupational diseases after they retired.

In Decision No. 1581/06, 2008 ONWSIAT 932, 85 W.S.I.A.T.R. (online), the worker was a carpenter who was exposed to asbestos for approximately 20 years. At the age of 81, he was diagnosed with mesothelioma. He died a year later. The employer appealed an award of full LOE benefits, based on the earnings of a fully qualified worker at the time of diagnosis, for the year prior to the worker’s death. The Tribunal requested submissions from the Board, who advised that there was no applicable policy and that Board practice in the area was under review. The Tribunal found that there was no statutory basis to pay benefits to workers who had retired and withdrawn from the work force even in cases where they subsequently developed an occupational disease. The worker’s widow, however, was entitled to survivor benefits at the minimum rate since there was no statutory requirement that the deceased worker be entitled to loss of earning benefits.

Decision No. 884/08, 2008 ONWSIAT 3375, agreed with Decision No. 1581/06. While under the prior compensation schemes a retired worker could be entitled to benefits in certain circumstances, there was no basis in the WSIA for paying LOE benefits to a retired worker who did not have a loss of earnings as a result of the compensable injury. Decision No. 884/08 also denied a request from the worker’s representative that the decision be held in abeyance pending a resolution of an alleged inconsistency between Decision No. 1581/06 and Board practice. The absence of Board policy on a specific legal issue is not generally a reason to hold a Tribunal decision in abeyance, particularly given the 120-day time limit on decision-making in the WSIA. In this case, the issue appears to require statutory amendment, rather than policy development, and there is no ongoing Board policy consultation process.

Decision 495/06R, 2008 ONWSIAT 1292, 85 W.S.I.A.T.R. (online), is an example of the type of issue which may arise in the course of deciding entitlement to LOE benefits. The worker was working 36 hours a week when he was injured. Should his LOE benefits be based on a 36-hour or 40-hour week? The Tribunal accepted a Board policy analyst’s view that a worker’s SEB should match as closely as possible the number of hours worked prior to the accident. LOE benefits should not be reduced based on an expectation that the worker would increase the number of hours worked post-injury in the identified SEB in order to mitigate wage loss.

When the WSIA was initially enacted, LOE benefits could not generally be reviewed after 72 months. Several 2008 decisions considered subsequent statutory amendments which permit review of final LOE awards in certain circumstances. Decision No. 1641/08, 2008 ONWSIAT 2412, 86 W.S.I.A.T.R. (online), considered the GEA amendment which allows review of a worker’s LOE benefits after 72 months if the worker suffers a significant deterioration that results in a NEL redetermination. The Tribunal disagreed with the Board that benefits could only be reviewed once under this provision. The only statutory limitation is that the review must be conducted within 24 months of the NEL redetermination. Decision No. 908/07R, 2007 ONWSIAT 2475, 83 W.S.I.A.T.R. (online), considered the GEA amendment allowing review of LOE benefits where a worker was provided with an LMR plan and the plan was not completed before the 72 months expired. The Tribunal rejected the Board’s reconsideration request that benefits could only be reviewed within the 30 days following completion of the plan. The Board may review LOE benefits at any time until 30 days after completion of the plan and was not limited to only reviewing benefits after the plan was completed.

Board Policy Under the WSIA

While the Tribunal has always considered Board policy, the WSIA expressly states that, if there is an applicable Board policy, the Tribunal shall apply it when making a decision. Section 126 provides that the Board is to provide applicable policy and sets out a process for the Tribunal to refer policy back to the Board if the Tribunal concludes that the policy is inapplicable, unauthorized or inconsistent with the Act. During 2008, there were no section 126 referrals. There were, however, a number of cases interpreting Board policy, as well as several requests by the Board to reconsider a decision in light of Board policy. While the Tribunal does consider Board reconsideration requests, the usual threshold test for granting reconsideration applies.

As noted in previous Annual Reports, Board policy often changes over time. The rights and obligations of the parties may vary significantly depending upon which version of a policy applies. Tribunal cases have previously found that section 126 policy is similar to legislation and the presumption against retroactivity applies. The 2007 Annual Report noted that Decision No. 1170/07, 2007 ONWSIAT 1936, 83 W.S.I.A.T.R. (online), had considered arguments that the Board should have given an earlier start date to its new policy on offsetting CPP disability benefits from partial future economic loss (FEL) awards under the pre-1997 Act. The new policy’s effective date is January 1, 2004. Decision No. 1170/07 noted that there were two lines of Tribunal decisions on the Board’s prior 1996 policy; however, no decisions had found that the 1996 policy was inconsistent with or not authorized by the Act. The Board was acting within its discretion in adopting the new policy and in setting the start date. The effective date of the board’s new CPP offset policy continued to be the subject of dispute in 2008. Decisions No. 1261/08, 2008 ONWSIAT 2116, and 1800/07, 2008 ONWSIAT 786, agreed with the analysis in Decision No. 1170/07. There is now a consistent line of Tribunal decisions that the Board’s original policy to offset CPP benefits against partial FEL awards is consistent with the pre-1997 Act and that the new policy’s effective date of the January 1, 2004 is within the Board’s discretion.

In Decision No. 2694/07, 2008 ONWSIAT 13, 84 W.S.I.A.T.R. (online), the Tribunal considered an argument that the Combined Values Chart should not apply to workers with psychotraumatic disabilities. It was submitted that the American Medical Association (AMA) Guides, which are the prescribed rating schedule, do not include a rating schedule for psychotraumatic disability and the reference in Board policy to body areas or symptoms should not be read to extend to psychotraumatic disability. The AMA Guides provide for five classes of impairment for psychotraumatic disability but, unlike other impairments, there are no specific numerical readings. The Guides, however, contemplate that it may be necessary for persons using the Guides to determine the numerical ratings. The Board has done this in its policy. There is nothing in the wording of the Guides to suggest that the Combined Values Chart should apply differently if numerical ratings are set. The Regulations require that the Board carry out ratings for impairments that are not addressed in the AMA Guides in a manner that is most consistent with the criteria in the listings that are most analogous. Decision No. 2694/07 found that the Board’s policy assigning numerical ratings to the five AMA classes of psychotraumatic disability and its practice of applying the Combined Values Chart to determine whole-body ratings, even when one of the awards is for psychotraumatic disability, results in the most analogous ratings.

Decision No. 230/06R2, 2008 ONWSIAT 3135, considered a Board reconsideration request that the new interest policy does not authorize payment of interest on health care benefits. While the Board’s request was granted based on the wording of the new policy, Decision No. 230/06R2 commented that, in its view, there was no substantive difference between the old and new interest policies. The decision held that interest could be payable under the new policy in exceptional circumstances but took a narrower approach to “exceptional circumstances” than prior Tribunal decisions on interest. Exceptional circumstances might exist where the worker paid for the health care, and delay in obtaining the health care might adversely affect the worker’s health. In this case the dispute involved home renovations and there were no exceptional circumstances. Decision No. 230/06R2 is also interesting for its discussion of the distinction between retroactive, retrospective and immediate application of Board policy.

The Board has adopted policy under the WSIA provisions which recognize entitlement for mental stress where there is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. The Board’s policy includes the concept of the cumulative effect of traumatic incidents for workers who may be exposed to traumatic situations due to the nature of the employment. Decision No. 1839/07, 2008 ONWSIAT 176, 84 W.S.I.A.T.R. (online), considered this policy in the context of an appeal by a worker who was a telecommunications officer for a police force. She took incoming emergency calls and dispatched police and other emergency service workers as required. The Panel determined that, in deciding whether an incident is traumatic, the average worker test applied. The fact that an emergency worker experiences traumatic events on a regular basis does not make those events less traumatic, but does have a bearing on the question of whether the events are sudden and expected. The policy on “cumulative” trauma should be interpreted so as to grant entitlement to workers who, because of the nature of their work, experience traumatic events which are not entirely unexpected. If the provision were read so as to require each discrete event to be sudden and unexpected, there would be little use for the provision, as each event would be compensable in and of itself.

Decision No. 94/04, 2008 ONWSIAT 1797, 86 W.S.I.A.T.R. (online), considered the Board’s policy on deducting CPP benefits from section 147(2) supplementary benefits which are available to workers receiving pensions under the earlier Acts. An earlier Board Minute and the Board’s policy provide for the deduction of CPP benefits prior to the application of the statutory cap on supplementary benefits; however, the Board submitted that the wording of the document was in error. The worker argued that the policy should be applied. Decision No. 94/04 allowed the appeal as the method of calculation set out by the Minute and policy was not absurd or otherwise inconsistent with the Act.

Right to Sue Applications

The WSIA and earlier Workers’ Compensation Acts are based on the “historic trade-off” in which workers gave up the right to sue in exchange for statutory no-fault benefits. The Tribunal has the exclusive jurisdiction to decide whether a worker’s right to sue has been removed by the Act. Right to sue applications may raise complicated legal issues, such as the interaction between the WSIA and other statutory schemes.

Decision No. 2126/07, 2007 ONWSIAT 2689, 84 W.S.I.A.T.R. (online), illustrates the type of disputes which the Tribunal may be called on to resolve under section 31 of the WSIA. While receiving treatment in hospital for a compensable condition, a worker fainted and sustained injuries to different parts of his body. Tribunal decisions have generally found that, where further injury results from negligent medical treatment, the additional injury is generally foreseeable; the worker is entitled to compensation and the right of action is removed. Decision No. 2126/07 held that the arguments that the new areas of injury were remote from the original injury and that the hospital was negligent in failing to warn the worker and supervise him following treatment, did not distinguish the case from prior Tribunal cases.

An issue which has arisen in previous years is whether the Tribunal has jurisdiction to determine a section 31 application where the worker has received statutory accident benefits (SABs) under the Insurance Act but no court action has been commenced. While early cases found there was no jurisdiction, two decisions in 2007 considered more extensive submissions and found that the Tribunal has jurisdiction. Decision No. 1288/08, 2008 ONWSIAT 2572, agreed with the more recent cases that the Tribunal has jurisdiction to consider a SABs insurer’s section 31 application. Decision No. 1288/08 applied the reasoning in Decision No. 14/06, 2007 ONWSIAT 339, 81 W.S.I.A.T.R. (online), in finding that the insurer had standing to bring an application under section 31(1)(a). The phrase in section 31(1)(a) “right to commence an action”, includes situations in which the right has been conferred but has not been acted upon or triggered.

Decision No. 1988/08I, 2008 ONWSIAT 3231, is another case which considered the Tribunal’s jurisdiction, this time whether it continues to have jurisdiction under the pre-1989 Act to consider whether the Board is entitled to offset the surplus received in a subrogated court action against a subsequent increase in the worker’s pension. Decision No. 1988/08I agreed with prior Tribunal caselaw that the relevant provisions in the pre-1989 Act are continued by the WSIA. Accordingly, the Tribunal has jurisdiction; however, there was no reason to reverse the Board’s decision. The pre-1989 Act did not limit the Board to deducting only future payments. The statutory provision was also broad enough to encompass an offset for administrative costs. The Board had used a 10% figure to estimate the cost of administering claims and this was reasonable and not inconsistent with the Act.

Employer Issues

Appeals involving employer issues, such as classifications, transfers of costs and adjustments of experience rating accounts, continue to form a significant part of the Tribunal’s case load.

Decision No. 1203/08, 2008 ONWSIAT 2517, illustrates a fundamental difference between requirements contained in Board policy and those in Regulation. “Exceptional circumstances” or “manifest unfairness” may justify variation in the application of Board policy; however, they cannot be used to avoid requirements in a Regulation. Since payroll segregation and multiple rate group rules are prescribed by Regulation, Decision No. 1203/08 held that they could not be varied by an agreement with the Board staff. 

Second Injury and Enhancement Fund (SIEF) relief is an issue frequently appealed to the Tribunal. Decision No. 526/08, 2008 ONWSIAT 866, 85 W.S.I.A.T.R. (online), considered when 100% SIEF relief is available. Board policy provides that 100% SIEF relief is available when a prior non-work-related condition is the “cause” of the accident. It was found that “cause” refers to the precipitating or triggering cause; for example, when a worker falls at work because he has an epileptic seizure at work. In other circumstances, SIEF relief is based on the Board’s table for rating the medical significance of pre-existing conditions and the severity of the accident. In this case, the worker aggravated a pre-existing knee condition when he stepped on an air hose at work. The Board had granted 90% SIEF relief. Since the pre-existing condition did not precipitate or trigger the injury, the employer was not entitled to 100% SIEF. Under the rating table, there is a range of possible awards in the upper category. It is not practicable or reasonable to attempt to distinguish between very minor differences, such as between 93% and 94%. This was a case, however, in which it was appropriate to award SIEF relief in the middle of the range; SIEF relief was increased to 95%. The worker had had two prior failed reconstructive knee surgeries and a more recent arthroscopy. The 5% cost impact to the employer was sufficient, if not more than sufficient, to reflect the contribution of the workplace triggering event to the worker’s injury.

Previous Annual Reports have noted that the Tribunal has found that the Board is entitled to consider updated information when implementing retroactive adjustments ordered by the Tribunal. Decision No. 635/02, 2008 ONWSIAT 1427, 86 W.S.I.A.T.R. (online), applies this caselaw to implementation of a retroactive adjustment ordered at the Board level. Before the ARO, the employer succeeded in increasing its SIEF relief from 50% to 75% but, when the decision was implemented the CAD-7 surcharge increased by about $30,000 to $38,000. After reviewing the formulae used in the calculations, Decision No. 635/02 determined that the increase was due to a change in the employer’s frequency index which is used to calculate the performance index. While it might seem counter-intuitive for an increase in SIEF relief to result in an increased surcharge, the CAD-7 rating scheme is updated prior to the application of SIEF relief. In this case, the frequency index had changed due to the payment of further benefits in a different claim.

Finally, a novel issue arose in Decision No. 800/07, 2008 ONWSIAT 1993, 86 W.S.I.A.T.R. (online), respecting the effect of provisions in the NEER plan when an employer closes its manufacturing operations in Ontario. The employer argued a NEER surcharge was unfair because the employer was no longer in a position to re-employ injured workers or improve health and safety. The Tribunal found that, while the text of the NEER plan is not official Board policy, it may be used as a reference. The text of the plan indicates that discretion is to be exercised when an employer’s business is reorganized or discontinued. On the facts, however, there was no reason to adjust the surcharge until the last quarter of the final year. There was only minimal impact on the return of injured workers prior to that date.

Occupational Disease

Occupational disease cases, which involve workplace exposure to harmful processes or substances, raise some of the most complicated legal, medical and factual issues. Occupational diseases are compensable if they fall under the statutory definition of “occupational disease” or “disablement”.

Occupational disease cases often involve an analysis of epidemiological evidence and Board policy. Decision No. 400/08, 2008 ONWSIAT 2508, is a good example of this type of appeal. The worker was an underground miner for more that 30 years in Manitoba and Ontario. He was diagnosed with chronic obstructive lung disease and lung cancer at the age of 62 and died shortly thereafter. Starting in 1957, he had had 14 years of gold mining in Manitoba, followed by uranium mining in Ontario. Decision No. 400/08 contains a thorough review of the scientific research and development of the 1999 Board policy on uranium mining and cancer. The worker’s radiation exposure was 31.12 WLMs (working level months), well below 40 WLMs required by Board policy; however, the Tribunal found that the prior out-of-province gold mining exposure constituted a pre-existing vulnerability. There was also sound epidemiological evidence that the mixture of gold and uranium mining increases chances of individuals developing lung cancer. Factoring in even a relatively minor amount for the out-of-province gold mining would bring the worker within the accepted relative risk for entitlement.

In cases where there is no Board policy and limited epidemiological evidence, medical evidence specific to the worker may establish that the worker’s occupational disease is attributable to the workplace. The Tribunal maintains a roster of independent medical assessors and a Panel or Vice-Chair hearing a case may commission an expert opinion from a medical assessor or a review of the medical literature. Decisions No. 2417/06, 2008 ONWSIAT 1138, and 2442/06, 2008 ONWSIAT 2320, are examples of such cases. Decision No. 2417/06 allowed a worker’s claim for initial entitlement for tonsillar cancer due to asbestos exposure. There is no Board policy on tonsillar cancer, although there is Board policy dealing with laryngeal cancer arising from asbestos exposure. Decision No. 2417/06 accepted the evidence of a medical assessor that there was a likely causal relationship between the worker’s occupational exposure to asbestos and the development of his tonsillar cancer. While the assessor acknowledged that the connection between the exposure and the cancer had not been conclusively established in the literature, the law does not require causation to be established with scientific certainty but on the balance of probabilities. In Decision No. 2442/06, the Tribunal denied a claim for entitlement for liver disease (non-cirrhotic portal hypertension) due to exposure to hexachloroethane. A medical assessor’s report did not support a workplace contribution. An inference of causation cannot be made by simply demonstrating that there is a possibility of some causal connection, nor can the statutory benefit of the doubt provision be used as a substitute for evidence.

In 2007 the WSIA was amended to include a presumption for certain heart injuries and occupational diseases sustained by firefighters. Decision No. 1194/07, 2008 ONWSIAT 131, 84 W.S.I.A.T.R. (online), is the first decision to consider these amendments and, in particular, the presumption in favour of a worker who suffers a heart injury while, or within 24 hours of, attending a fire scene or actively participating in a training exercise that includes a simulated fire emergency. Decision No. 1194/07 found that the Legislature intended that claims covered by the new presumption should be referred back to the Board. In this case, however, the Tribunal should decide the appeal as the presumption did not apply. Although the worker suffered a heart attack while attending an in-class training session, he had not worked for four days prior to the training session and the session itself did not involve a simulated fire emergency. The evidence in Decision No. 1194/07 included a report from the Industrial Disease Standards Panel on cardiovascular disease among firefighters. Decision No. 1194/07 agreed with prior Tribunal decisions that IDSP reports are intended for use in developing Board policy and not as evidence in deciding individual cases. The report raised no more than a possibility of a causal connection between cardiovascular disease and firefighting. The Tribunal found that the worker had not suffered a disablement due workplace exposure to smoke and fumes. The worker had not attended hospital, sought medical attention, become ill or lost time as a result of any exposures. He also had a number of recognized risk factors, specifically smoking, age, gender, cholesterol level and weight.

Paralegal Regulation

Following the 2007 amendments to the Law Society Act which introduced paralegal regulation, the Tribunal has taken steps to ensure that paralegals who represent parties at the Tribunal meet the Law Society’s requirements. The Tribunal notified representatives of their obligations under the Law Society Act, facilitated the licensing process by developing a reference procedure, and monitored its caseload closely to ensure that hearings were not lost as a result of a representative’s failure to take appropriate action. In 2008, paralegal regulation arose as an issue in a number of Tribunal decisions.

Decisions No. 598/08, 2008 ONWSIAT 1839, 86 W.S.I.A.T.R. (online), and 2508/07I, 2008 ONWSIAT 1873, 86 W.S.I.A.T.R. (online), were the first two decisions to consider the Tribunal’s jurisdiction to engage in an inquiry regarding the status of an unlicensed paralegal who does not appear to be covered by one of the exemptions in the Law Society Act and By-laws. Both decisions found that the Tribunal has jurisdiction to undertake an inquiry directed to whether the representative appears to be entitled to act in the circumstances of the particular case. A final decision on the representative’s actual status must be made by the Law Society.

In Decision No. 598/08, the Tribunal decided as a preliminary matter that the representative appeared to be covered by the exemption for representation by a friend, and the hearing proceeded. The status issue was more complicated in Decision No. 2508/07I and various options were reviewed. In situations where it is clear that the representative is not registered and not exempt, the Tribunal may decide that the hearing should not proceed as the Law Society Act makes such representation unlawful. Where the representative’s status is unclear, the Tribunal may decide that the hearing should proceed and that the representative’s status should be referred to the Tribunal Chair. In deciding whether the matter should proceed, the potential to bring the administration of justice into dispute if the representative is found to be unauthorized should be balanced against the parties’ right to a hearing without undue delay.

Subsequent decisions have taken a similar approach. In Decision No. 1489/08I, 2008 ONWSIAT 2414, 86 W.S.I.A.T.R. (online), for example, the Tribunal was satisfied that it appeared that the representative, a certified general accountant (CGA), was covered by the exemption for persons acting in the normal course of carrying on a profession or occupation governed by another Act. It emphasized, however, that the ruling was limited to the facts before it and should not be taken as authority for the proposition that all CGAs are exempt. There was also an issue about whether the representative had the insurance required to act as a CGA. Decision No. 1489/08I held that implicit in the requirement to act “in the normal course of carrying on” another regulated profession is the requirement to have any necessary insurance. The representative was put on notice that if he continued to act in the proceedings, the question of whether he had obtained any necessary insurance would be referred to the Tribunal Chair. On the other hand, in decisions where the Tribunal has been satisfied that the unlicensed representative appears to fall under an exemption, the hearing has been allowed to proceed.

Other Legal Issues

Legal principles governing causation are of fundamental importance to Tribunal decision-making. In determining causation, the Tribunal applies the “significant contribution” and makes decisions on the balance of probabilities. Decision No. 776/06, 2008 ONWSIAT 2939, discussed the recent decisions on causation in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, and Monks v. ING Insurance Co. of Canada, [2008] ONCA 269, 90 O.R. (3rd) 689. While Resurfice held that the “but for” test is the usual causation test and that the “material contribution” test applies in special circumstances, the more recent Court of Appeal decision in Monks held that Resurfice did not alter the basic causation principles set out in Athey v. Leonati, [1996] 3 S.C.R. 458. Athey has been applied in numerous Tribunal decisions. Decision No. 776/06 found that it would require very detailed submissions to depart from the Tribunal’s longstanding approach to causation. It also did not appear that the “but for” test would lead to a different result on the facts.

Decision No. 1529/04I2, 2008 ONWSIAT 547, 85 W.S.I.A.T.R. (online), considered whether the Tribunal has jurisdiction to apply the Ontario Human Rights Code and, if so, whether the Code applies to benefits payable under the WSIA. Applying Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, Decision No. 1529/04I2 held that the Tribunal has jurisdiction to consider the Code. Decision No. 1529/04I2 distinguished previous Tribunal decisions which have found that benefits are not “services” under the Code, due to the exclusion for “periodic payments imposed by law”. The earlier decisions did not have the benefit of detailed submissions and also relied on a Tribunal decision which had been released prior to the Supreme Court of Canada’s decision in Berg v. University of British Columbia, [1993] 2 S.C.R. 353, which highlighted the privileged status of Human Rights legislation. The hearing will reconvene to hear arguments on whether the application of the Combined Values Chart to reduce NEL awards of workers with prior NEL awards, but not to awards for workers with prior non-compensable impairments or impairments subject to a pension award, violates the Human Rights Code or the Charter of Rights.

A series of 2008 cases considered the effect of issue estoppel. This is a legal doctrine which applies to administrative tribunals as well as courts. It prevents a litigant from continuing to dispute an issue once it has been finally decided. The three prerequisites for issue estoppel are: (1) that the same question or issue has been decided, (2) that the decision was judicial and final and, (3) that the parties to the decision or their privies are the same. Prior Tribunal cases have applied the Supreme Court of Canada’s analysis in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, which recognizes that there is a discretion to allow a matter to proceed, even though the prerequisites for issue estoppel have been met. Discretion is exercised to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in a particular case. The 2008 decisions indicate the care that must be taken in deciding whether the same issue has been decided in prior Tribunal decisions and also provide more guidance on when the discretion is exercised.

Decision No. 1/07I, 2008 ONWSIAT 873, 85 W.S.I.A.T.R. (online), is an example of a case where issue estoppel did not apply as the issues in the current appeal were distinct from those decided in the prior Tribunal decision. In Decision No. 792/08I, 2008 ONWSIAT 1131, 85 W.S.I.A.T.R. (online), the Tribunal identified some overlap between the issue on appeal and issues decided in a prior Tribunal decision; however, deciding the current appeal did not necessarily require reopening the prior decision. While issue estoppel did not apply to the new issues, the Tribunal was bound by findings made in the prior decision and would not consider submissions on issues decided in that prior decision. In Decisions No. 2796/07, 2008 ONWSIAT 760, 85 W.S.I.A.T.R. (online), 1062/08, 2008 ONWSIAT 1770, and 1877/06, 2008 ONWSIAT 1458, the Tribunal found that the issues had been previously decided in prior Tribunal decisions and the preconditions for issue estoppel applied. In those cases, it was also found that there was no reason to exercise the discretion not to apply issue estoppel. Any concerns about unfairness or injustice due to the prior decision could be raised in a request to reconsider the prior decision.

Decision No. 2621/07I, 2008 ONWSIAT 2842, considered whether the appellant was estopped from arguing that she was a common law spouse by a finding that she was not a common law spouse by a Canada Pension Plan adjudicator. The legal issue was the same; however, the CPP adjudicator applied specific policy criteria which were not found in Board policy. Decision No. 2621/07I held that issue estoppel did not apply. The Tribunal will have to weigh the evidence and consider what factors are important. Also, the Tribunal did not consider the parties to be the same. The worker’s children from a previous marriage had raised the issue under WSIA but had not participated in the CPP proceedings. Even if the prerequisites for issue estoppel had been met, Decision No. 2621/07I would have exercised the discretion to allow the matter to proceed. There was no abuse of process by the appellant; it was the worker’s children who raised the issue under the WSIA.

Finally, Decision No. 167/06R2, 2008 ONWSIAT 1943, 86 W.S.I.A.T.R. (online), is of interest for its consideration of the interaction between proceedings under the Regulated Health Professions Act and Tribunal proceedings. It held that Tribunal hearings are “civil proceedings” under the Regulated Health Professions Act. Since that Act prohibits use of evidence submitted to the College in “civil proceedings”, the Tribunal could not consider evidence submitted to the College, even though the same evidence had also been sent by the doctor to the Board and arguably had a dual purpose.

Posted on: June 12, 2009

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