Highlights of Noteworthy Decisions

Decision 249 12 I2R
E. Smith - M. Christie - D. Broadbent
  • Hearing (de novo)
  • Legal precedent (consistency)
  • Reconsideration (error of law)

In Decision No. 249/12I2, the Panel found the employer was not entitled to retroactive adjustment of its premiums between January 1, 2005, and January 1, 2007, on the basis that the employer's letter in 2007 did not constitute a letter of intent to appeal or a request within the terms of Board policy.

The employer applied for reconsideration of that finding in Decision No. 249/12I2.
The employer submitted that the Panel failed to consider the reasoning in three Appeals Resolution Officer decisions to which the employer had referred, and that this failure to consider those decisions constituted an error of law or an overlooking of important evidence.
In Decision No. 249/12I2, the Panel did not refer to the analysis of the ARO whose decision was under appeal or to the three other ARO decisions. An appeal at the Tribunal is an appeal de novo. The Panel entered into its own analysis of the policy and the law. The Panel set out its reasoning in Decision No. 249/12I2 and provided a full explanation for why it did not accept the 2007 letter as sufficient to constitute a request and, therefore, by implication, why it did not accept the employer's interpretation or the interpretation reflected in the ARO decisions.
The Tribunal's Members Code of Conduct states that members should not ignore relevant Tribunal decisions. However, it does not contain any similar statement with respect to Board decisions made at the ARO level. It is common practice for Tribunal decisions to refer only to other Tribunal decisions, without reference to the analysis even of the ARO whose decision is under appeal. ARO decisions may be referred to sometimes, but generally are not referred to unless they are relevant and helpful.
ARO and Board operating level decisions are not evidence. They also do not constitute policy which the Tribunal is bound to apply. They are decisions of lower level adjudicators and have force and effect until appealed. They do not bind the Tribunal and they are not entitled to deference.
The employer raised concerns about consistency. However, there was no basis upon which it would be reasonable to expect a Tribunal panel to address ARO decisions due to concerns about consistency. There is no way for a panel to make reasoning of Board adjudicators consistent. It is also not possible to know whether the decisions referred to by the employer reflected the dominant view of Board adjudicators. Tribunal decisions address the importance of consistency in Tribunal decisions but, even there, panels are not bound by precedent and it is expected that decisions may disagree when a novel issue is first addressed.
The Tribunal is required to apply Board policy. However, it is for the Tribunal to interpret what that policy means, which is what the Panel did in this case. The Board sometimes issues practice directions, which the Tribunal is not bound to apply, but which are often taken into account. The Panel was not advised of any such practice directions in this case.
Even if the Panel had addressed the analysis in the three ARO decisions, the result of the appeal would not have changed. Those decisions discussed the notification date and found that the date was the date of the initial letter. However, the decisions did not address the implications of a long delay in which there has been no communication with the Board by the employer, as was the situation in this case. If the date of the letter was accepted, a representative could delay for years before providing information without any effect on the retroactivity period. This is not a proper reading of the policy, as it would produce an absurd result and leave the Board in a position where proper adjudication was not possible. The Panel was of the view that the policy does not provide for an open-ended notice of intent process.
An employer is not precluded from providing further information after an initial request but the employer's communication with the Board must be sufficient to constitute a request under the policy, which means that there must be a reasonable expectation that the Board can and will action to address the request. A letter in which an employer states that it intends to ask for a review in the future is not sufficient to constitute a request under the policy.
The application to reconsider was denied.