Highlights of Noteworthy Decisions

Decision 512 06 R
M. Keil
  • Reconsideration (error of law)
  • Loss of earnings {LOE} (older worker)
  • Charter of Rights (equality rights) (discrimination) (age)

The worker applied for reconsideration of Decision No. 512/06, in which the majority of the hearing panel concluded that s. 43(1)(c) of the WSIA, limiting LOE benefits of workers injured at age 63 or older, did not violate s. 15(1) of the Charter of Rights.

Based on analysis of new statistics, the worker submitted that there were 456 workers injured beyond age 63 whose benefits are potentially limited. The Vice-Chair did not find this statistical information to constitute significant new evidence which would likely have changed the result of the original decision. The new evidence does not contradict the findings that the two-year limitation of benefits does not disadvantage the majority of injured workers who return to work. There was sufficient evidence before the hearing panel to support the findings of the majority of the panel.
Statements in the original decision about financial considerations for the Board did not give paramount consideration to potential financial repercussions on the Board. There was no suggestion that the majority's findings were motivated by any financial difficulties that Board may or may not be experiencing.
The worker submitted that the majority erred in finding that the WSIA was primarily an insurance scheme. The Vice-Chair noted that, while the majority did find that workplace insurance operates primarily as an insurance scheme, the majority also held that it is distinguishable from the for-profit underpinning of private insurance. The majority also agreed that the WSIA is ultimately a statutorily created regime. Thus, it never equated the WSIA to a private insurance plan. The Vice-Chair also noted that a report by Harry Arthurs to the Minister of Labour, relied on by the worker on this application, was not binding case law or Board policy.
The majority applied the appropriate Charter analysis and provided reasons for its conclusions on its Charter analysis. Most of the worker's submissions amounted to re-argument of the original case.
The application to reconsider was denied.