Highlights of Noteworthy Decisions

Decision 2113 15 R2
G. Dee (FT)
  • Reconsideration (implementation of decision)
  • Experience rating (NEER) (retroactive adjustment) (implementation of award)

In Decision No. 2113/15, the Vice-Chair found that the employer was entitled to an increase in SIEF relief. In implementing the decision, the Board noted that the NEER window and closed and that, accordingly, the employer's experience rating account would not be retroactively adjusted unless there was a directive from the Tribunal to do so.

The employer applied for reconsideration or clarification of Decision No. 2113/15.
The Vice-Chair now reviewed submissions from the Board that he requested in Decision No. 2113/15R.
The Board referred to its statutory authority to determine its own practices and procedures. It also noted that Tribunal decisions do not have binding precedential value when policies and procedures are being determined by the Board but that the Board may choose to adopt adjudicative measures set out in Tribunal decisions if it finds them to be instructive and desirable. It referred to Decision No. 591/94, which found that a retroactive adjustment was not warranted in the particular case, and set out criteria for consideration, which included whether the employer acted with due diligence in pursuing the SIEF claim.
The Board was exercising its discretion when it adopted the approach taken in Decision No. 591/94. The Vice-Chair reviewed Decision No. 591/94, and noted that it was released in 1995, when the Tribunal was less than 10 years old, and when many of the procedural rights that are now taken for granted were of quite recent development. At that time, there were no statutory time limits for appeal. It would not have been possible to create an effective SIEF appeal process that did not also create an open-ended NEER review period, without the simultaneous development of some means to limit the potentially open-ended nature of the process. It was for this reason that the test of due diligence came into existence.
When the WSIA came into effect in 1998, the appeal process was no longer completely open-ended. There is now a six-month time limit to appeal within the Board and then again to appeal a final decision of the Board to the Tribunal. Beyond meeting the time limit, there is no requirement within the WSIA to establish due diligence in pursuing an appeal.
In this case, at the time of the initial decision denying SIEF relief, the NEER window was still open. The employer also met the statutory time limit to appeal, both at the Board and the Tribunal.
The purpose of any employer appeal regarding SIEF is to achieve a reduction of the employer's actual assessments payable to the Board. To hold that an employer has a right to appeal an SIEF decision but no right to a remedy through reduction of its assessments is to effectively deprive the employer of its right to appeal. The Vice-Chair concluded that a successful SIEF appeal at the Tribunal must always be considered to include a direction to re-open the experience rating window, if necessary, in order to provide an effective remedy to the employer.
The Vice-Chair clarified that the employer was entitled to implementation of Decision No. 2113/15, by way of a retroactive NEER adjustment.