Highlights of Noteworthy Decisions

Decision 2346 12 I2
G. Dee - E. Tracey - C. Salama
  • Charter of Rights
  • Jurisdiction, Board (policy or regulation)
  • Merits and justice
  • Experience rating (fatal claim premium adjustment)
  • Assessment of employers (fatal claim premium adjustment)
  • Board Directives and Guidelines (employer assessment) (fatal claim premium adjustment)

In 2008, the employer was expecting to receive premium rebate of more than $1,000,000 under the NEER experience rating plan based on its accident record for the years 2005, 2006 and 2007. On October 30, 2008, a worker died as a result of a workplace accident. The Board denied the premium adjustment in accordance with Operational Policy Manual, Document No. 14-02-17, on fatal claim premium adjustment. The employer appealed.

The employer submitted that: 1) the provisions of the fatal claim premium adjustment policy should not be applied on the merits and justice of the situation; 2) the policy was not authorized by the WSIA; 3) the policy was a penalty and the manner in which it was imposed contravened the Canadian Charter of Rights and Freedoms.
Document No. 14-02-17 provides that, in the year of a traumatic fatality claim, a premium increase, equivalent to the NEER or CAD-7 refund an employer was entitled to receive, is applied to the employer of the deceased worker. The policy also provides that decision-makers will also consider the Board's merits and justice policy.
The worker was an experienced mechanical maintenance technologist who was performing a pre-start-up check on a conveyor system used to stack limestone rock into large piles. An unusually large piece of rock fell from the hopper a distance of 16 feet and struck the worker. It was later determined that no overhead guarding was in place. The employer was charged and convicted under the Occupational Health and Safety Act, and was fined $300,000 plus a $75,000 victim surcharge.
The employer submitted that it should retain its 2008 NEER rebate based on the merits and justice and the circumstances of the case.
The Panel noted that, according to the Board's merits and justice policy, in order to justify an exception to a policy, there must be exceptional circumstances that justify doing so in order to avoid an absurd or unfair result that the Board never intended. Further, a determination on the merits and justice of a case does not authorize a decision-maker to disregard relevant provisions of the Act or Board policy.
The fatal claim premium adjustment policy was very clear with respect to intent of the policy. Once a traumatic fatality occurs, a premium increase is applied equivalent to the amount of any NEER or CAD-7 refund. There is no provision to indicate that the circumstances of the accident or of the employer are to be considered. The merits and justice provisions should not be used in a manner as to modify the essential thrust of the policy. There is nothing in the policy to indicate that an employer should retain its refund so long as a certain standard of care is met. The policy focuses only on whether a traumatic fatality has occurred.
The Panel concluded that the employer was not entitled to relief from the application of the fatal claim premium adjustment policy based on the merits and justice.
The employer submitted that provisions of the fatal claim premium adjustment policy were not authorized by the WSIA.
The policy starts with a review of s. 82 of the WSIA but also refers to s. 83 in the legislative authority section of the policy. Section 81 provides for the establishment of premiums, s. 82 allows the Board to increase or decrease premiums in particular circumstances, and s. 83 allows for the establishment of experience and merit rating programs.
Although the policy is phrased in terms of providing for an increase in the employer's premiums when a traumatic fatality occurs, the size of the increase is directly tied to the employer's experience rating refund. Prior to reaching a decision in response to the employer's submissions, the Panel requested additional submissions from the Board regarding its authority for the policy under s. 82 or s. 83, whether the charge should be characterized as a premium increase or a penalty and whether the charge is based upon fault in a system that is, generally, a no-fault system.
A decision regarding the authority for the policy will be issued after receiving submissions from the Board. The Charter issue will only be addressed, if necessary, following determination of the non-Charter issues.