Highlights of Noteworthy Decisions

Decision 576 15
R. Nairn
  • Board Directives and Guidelines (interest)
  • Assessment of employers (retroactivity) (credit interest)

In 2001, the Board granted the employer a NEER adjustment, resulting in a credit of about $19,000. In 2011, the employer requested payment of interest on the adjustment from the amount was paid in 2000 until it was refunded in 2001. The employer appealed a decision of the Appeals Resolution Officer denying the payment of interest.

Board Operational Policy Manual, Document No. 14-02-06, on employer premium adjustments, creates a two-year retroactivity limit on premium adjustments. The employer submitted that this policy referred to interest charges (debit interest) and not to interest payments (credit interest), and that there was nothing in the policy to preclude the payment of interest requested by the employer.
The employer also submitted that Document No. 14-02-07, on employer non-compliance interest and charges, only limits credit interest by providing that it does not apply to periods prior to January 1, 1997.
The Vice-Chair noted that the Tribunal has generally interpreted interest as being included in the concept of premiums. Decision No. 150/08 found that the amount of premiums and penalties payable by an employer includes the interest payable. Accordingly, the Vice-Chair was satisfied that Document No. 14-02-06, which provides that the Board makes debit or premium adjustments to employer accounts back for two years, was broad enough to included adjustments for credit interest, unless otherwise excluded. None of the specific exclusions in the policy referred to interest.
Document No. 14-02-07 did not create a special retroactivity rule for interest payment. The reference to credit interest not applying in periods prior to January 1, 1997, was not intended to create a special retroactivity rule. Rather, it was a reference to the fact that the Board did not have a policy to pay credit interest to employers until January 1, 1997. In addition, the Vice-Chair noted the reference in Document No. 14-02-07 to see Document No. 14-02-06 for adjustments to premiums. The Vice-Chair was satisfied that this reference includes the general retroactivity rule in Document No. 14-02-06.
Even if "interest charges" in Document No. 14-02-06 is interpreted narrowly to refer only to debit interest, the general retroactivity rule should still apply by analogy interest payments or credit interest. Credit interest is not analogous to any of the exclusions in Document No. 14-02-06. Credit interest is more analogous to debit interest. Had the Board intended to treat credit interest differently, it could easily have included a specific exemption.
The appeal was dismissed.