Highlights of Noteworthy Decisions

Decision 2346 12 I5
G. Dee (FT) - E. Tracey - C. Salama
  • Charter of Rights
  • Discretion, Board (employer assessment)
  • Merits and justice
  • Board policies (referral for review) (direction from Board)
  • Experience rating (fatal claim premium adjustment)
  • Assessment of employers (fatal claim premium adjustment)
  • Board Directives and Guidelines (employer assessment) (fatal claim premium adjustment)
  • Referral to Board (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 provisions of the fatal claim premium adjustment policy were not authorized by the WSIA. In Decision No. 2346/12I2, the Panel requested additional submissions from the Board regarding its authority for the policy.

In Decision No. 2346/12I4, the majority of the Panel found that the fatal claim premium adjustment policy achieves a result that was not intended by the provisions of s. 82 of the WSIA, in that employers with consistently good records face premium increases based on one accident, whereas employers who do not qualify for experience rating rebates do not face increases. Further, the better the accident record prior to the fatal accident, the higher the increase will be. The Board has discretion under s. 82, but the exercise of the discretion cannot be arbitrary. Further, reference in the Board policy to the merits and justice does not save the policy. Merits and justice considerations cannot be used to vary the clear, stated intention of a policy. The majority of the Panel concluded that the fatal claim premium adjustment policy was not authorized by s. 82. The policy was referred to the Board for review pursuant to s. 126.
The Board responded with a Written Decision with Reasons, in which it concluded that the policy was consistent with, and authorized by, the WSIA and that it applied to the appeal.
In this decision, the Panel responded to the direction provided by the Board.
The Panel members have not changed their view regarding whether the policy is authorized by s. 82 of the WSIA. However, the Panel does not have the ability to choose whether to accept the Board direction. The Panel is required to proceed with the determination of the employer's appeal in light of the Board direction that the fatal claims premium adjustment policy is authorized by the WSIA and is to be applied.
The employer submitted that the Tribunal had the discretion to not give effect to the Board's direction. However, the Panel found no ambiguity in the words of s. 126 that would allow consideration of whether one interpretation of the section should be preferred over another. The Panel must give effect to the clear intention of the WSIA.
Another issue arose regarding the merits and justice. The Board asserted in its direction that, contrary to findings in Decision No. 2346/12I2, the policy, through its merits and justice provisions, contains what is effectively a standard of care that employer may demonstrate they have met in order to avoid the loss of their experience rating rebate if a fatality occurs.
The Panel noted that a referral to the Board under s. 126 does not involve referral of a Tribunal decision to the Board. Rather, it involves referral of the Board's own policy to the Board. The Board has authority to determine the legality of its own policies; it does not have authority to determine the correctness of Tribunal decisions, except to the extent that a Tribunal decision reaches a tentative conclusion that a Board policy is not authorized by or is not consistent with the WSIA.
Prior to making the referral, the Panel made finding concerning the merits and justice provisions of the WSIA and the Board policy. The Panel was authorized to make that determination. It involved a determination of what the policy actually says and means as written. There are no provisions in the WSIA that allow the Board to instruct the Tribunal about how a Board policy should be interpreted.
The merits and justice provisions of the WSIA are intended to avoid unjust results in unforeseen circumstances. They are not intended to allow decision makers to reach results that are contrary to the content of the Board policies as written and published in circumstances that were foreseen at the time the policies were adopted.
Thus, the Panel accepted the Board direction the Document No. 14-02-17 was authorized by the WSIA. By application of the policy, the employer would lose its experience rating rebate due to the fatal accident. As determined in Decision No. 2436/12I2, the merits and justice provision could not be used to allow the employer to retain the rebate.
The hearing adjourned to allow submission regarding the Charter of Rights.