Highlights of Noteworthy Decisions

Decision 371 17 I2
J. Smith - S. Sahay - K. Hoskin
  • Referral to Board (stress, mental)
  • Words and phrases (pending)

In Decision No. 371/17I, released in May 2017, the Panel found that the worker did not have entitlement for traumatic mental stress under s. 13(4) and (5) of the WSIA. Prior to the hearing, the worker had advised of intent to pursue a challenge under the Charter of Rights. The hearing was adjourned. The worker advised that he still intended to pursue the challenge under the Charter of Rights. In accordance with the Tribunal's usual practice, the Panel requested submissions from the parties on whether, if not for s. 13(4) and (5), the worker would have had entitlement under older provisions.

As of January 1, 2018, s. 13(4) and (5) was repealed and replaced with new provisions regarding mental stress. In addition, a transitional provision was enacted as s. 13.1(8), which provides that claims pending at the Tribunal on January 1, 2018, must be referred back to the Board to be decided according to the new provisions.
The Tribunal Counsel Office provided submissions regarding legislative interpretation, which the Panel adopted.
The first impression, common meaning of a claim that is "pending" before the Tribunal is a claim in which the issue before the Tribunal has not been finally determined. This first impression, common meaning fits within the dictionary definition of the word "pending" and is consistent with both the English and French language versions of the WSIA.
There was no ambiguity in the meaning of the word "pending." The first impression, common meaning was consistent with other indicators of the legislative intent of the mental stress transitional provisions, and with the meaning of the word pending in other sections of the WSIA, in particular, s. 13.1(7).
The Panel concluded that this case remained pending before the Tribunal on January 1, 2018.
The worker raised concerns about financial responsibility and the cost of returning to the Board for further adjudication. However, the Panel found that it had no discretion to refrain from referring the case back to the Board.
The appeal was referred back to the Board pursuant to s. 13.1(8).