Highlights of Noteworthy Decisions

Decision 483 18 I
J. Smith - M. Christie - M. Ferrari
  • Judicial review
  • Loss of earnings {LOE} (older worker)
  • Charter of Rights (equality rights) (discrimination) (age)

The worker suffered a knee injury in October 2004, at age 64. He retired, pursuant to terms of a collective agreement, in November 2004, at age 65. The Board found that the worker intended to continue working at other work past age 65, and paid the worker LOE benefits until October 2006, two years after the accident, pursuant to s. 43(1)(c) of the WSIA.

The worker appealed denial of LOE benefits beyond October 2006, arguing the s. 43(1)(c) violated s. 15(1) of the Charter of Rights.
A pre-hearing conference was convened.
The only issue on the appeal was the constitutional challenge. This case had been placed in inactive status pending a determination of another appeal considering the same challenge to the constitutionality of s. 43(1)(c). Decision No. 512/06 found that s. 43(1)(c) did not violate s. 15(1) of the Charter. An application to reconsider Decision No. 512/06 was denied. The worker in that case then applied for judicial review of Decisions No. 512/06 and 512/06R. The application for judicial review was denied. This appeal was then reactivated.
Given that the worker did not intend to call new evidence, the Panel found that the decision on the judicial review of Decisions No. 512/06 and 512/06R was applicable to this appeal and was determinative of the issue.
The appeal will proceed to a written hearing on the merits.