Highlights of Noteworthy Decisions

Decision 724 16
B. Kalvin
  • Assessment of employers (retroactivity)
  • Class of employer
  • Merits and justice

The employer registered with the Board in 1989, and was classified by the Board based on the information provided by the employer. Based on the same information, the Board classified the employer in a new rate group when the rate groups were revised in 1993. In 2012, the Board conducted an audit of the employer and determined that the employer was also engaged in other activities and should be classified in three rate groups. The overall effect was that the employer was required to pay lower premiums that before the audit. The reclassification was retroactive to January 1, 2012, in accordance with Board policy.

The employer appealed a decision of the Appeals Resolution Officer denying further retroactivity of the reclassification. The employer submitted that it should receive further retroactivity based on the Board's merits and justice policy.
The Vice-Chair agreed with the approach in Decisions No. 1549/14 and 938/10, and found that the merits and justice policy does not apply in the circumstances of this case because the provision regarding exceptional circumstances only applies if the strict application of the facts of a case leads to an absurd or unfair result that the Board never intended. The fact that reclassification is limited to January 1 of the year in which the reclassification took place is clearly contemplated by the Board, and intended to foster administrative efficiency.
Some Tribunal decisions have applied the merits and justice policy to allow further retroactivity. However, those decisions generally pertain to circumstances in which the original Board classification was found to have constituted an egregious error. That was not the situation in this case, where the original classification was based on information supplied by the employer.
The employer relied on a Tribunal decision in which further retroactivity was granted in a case of misclassification resulting from simple error. However, the Vice-Chair did not agree with the approach in that case on the basis that it was not consistent with the Tribunal's usual approach.
The employer was not entitled to further retroactivity of the reclassification. The appeal was dismissed.