Highlights of Noteworthy Decisions

Decision 1932 04
S. Martel
  • Charter of Rights (equality rights)
  • Earnings basis (recurrences) (FEL)
  • Charter of Rights (Charter values)

The worker suffered a back injury in August 1996. He returned to work in September 1996. He suffered a recurrence in November 2001. In 2002, the Board granted the worker a 24% NEL award. As of July 2002, the Board granted the worker a full FEL award, with benefits based on his earnings at the time of the accident in 1996. The worker appealed, claiming that his FEL benefits should be based on his higher earnings at the time of the recurrence in 2001.

The Vice-Chair agreed with Decision No. 701/04R that s. 43(3) of the pre-1997 Act does not allow use of updated employment earnings at the time of a recurrence in determining a FEL award. FEL benefits are calculated based on net average earnings before the injury, which in this case was in 1996.
The worker raised a Charter of Rights argument. The Vice-Chair noted that the worker had not given notice to the Attorneys General of Canada and Ontario, as required by the Tribunal practice direction on Procedure When Raising a Human Right or Charter Question. The worker submitted that notice was not required because he was raising an argument based on Charter values rather than a Charter challenge.
Decision No. 480/11I discussed the distinction between a Charter challenge to the validity of a statutory provision and a Charter values argument. Where there is a genuine ambiguity between plausible readings of a legislative provision, there is need to resort to external interpretive aids, including Charter values. Where the legislative provision is not genuinely ambiguous and the Charter submission questions that validity of the provision, notice to the Attorneys General must be provided.
The Vice-Chair found that the pre-1997 Act was clear that FEL benefits for a recurrence are based on earnings at the time of the injury. This was not a case of genuine ambiguity between plausible readings. Thus, this was not a Charter values situation. Rather, this was a challenge to the legislation itself. Accordingly, the Charter argument could not now be raised, because notice had not been given as required by the Tribunal practice direction.
In any event, the Vice-Chair found that there was no discriminatory treatment. The worker submitted that there was discriminatory treatment as between temporarily and permanently disabled workers. However, the Vice-Chair found that temporarily and permanently disabled workers are not treated differently in the payment of temporary disability benefits. Both receive temporary benefits based on earnings at the time of the accident or most recent employment, whichever is greater. It is only when a worker becomes entitled to a permanent impairment or suffers temporary disability for more than 12 months that the nature of the benefits changes from temporary disability benefits to FEL benefits. Since a FEL benefit is of longer duration and more permanent in nature, it is not necessarily unfair to calculate the FEL benefits based on pre-accident earnings.
In addition, the Vice-Chair noted that the alleged differential treatment dealt with quantum of a benefit rather than access to that benefit. A worker would not be precluded from access to other benefits, such as a NEL award or health care benefits. Thus, the Board was not perpetuating any prejudicial or stereotypical concepts of disability.
The appeal was dismissed.