Highlights of Noteworthy Decisions

Decision 2346 12
G. Dee (FT) - E. Tracey - C. Salama
  • Charter of Rights (life, liberty and security)
  • Experience rating (fatal claim premium adjustment)
  • Assessment of employers (fatal claim premium adjustment)
  • Board Directives and Guidelines (employer assessment) (fatal claim premium adjustment)
  • Charter of Rights (proceedings in criminal and penal matters)

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. 2346/12I5, 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.
In this decision, the Panel considered whether the policy violated the Charter of Rights provisions in s. 7 regarding security of the person or s. 11(h) regarding double jeopardy.
Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person. Based on Supreme Court of Canada decisions, the Panel noted that it does not apply to corporations and it does not apply to property rights. However, no one, including a corporation, should be the subject of coercive proceedings and sanctions that are authorized by an unconstitutional law. The employer, in filing its appeal, was responding to an action initiated against it by the Board. As a result of those proceedings, the employer was denied more than $1,000,000 that it was expecting to receive. The Panel was satisfied that the employer had the right to argue that the fatal claim premium adjustment policy should not be enforced against it because it violated s. 7 the Charter.
The Panel found that the policy did not violate s. 7 of the Charter. The employer did not demonstrate that the policy violated anyone's rights under s. 7. At most, the policy created a financial penalty affecting property. The employer made no argument that the imposition of such a penalty amounted to an interference with anyone's life, liberty or security of the person.
Section 11(h) of the Charter provides that any person charged with an offence has the right, if the person is found guilty of the offence and punished for the offence, not to be tried or punished for it again. In this case, the employer was charged with a provincial offence under the Occupational Health and Safety Act. Following a plea, the employer was found guilty and fined $375,000.
It was not disputed that, in appropriate circumstances, a corporation will generally have the benefit of protection under s. 11 of the Charter. The employer's conviction under the OHSA enabled it to put forward the claim that s. 11(h) applied.
Based on Supreme Court of Canada decisions, the Panel noted that, in order to attract eligibility for s. 11 protection, the proceeding in question had to be either by its very nature a criminal proceeding or, if not, that a conviction for the offence charged might lead to a true penal consequence. The Panel was satisfied that the proceedings under the OHSA met the requirement of being criminal in nature and that the conviction and punishment in those proceedings allowed for protection found in s. 11(h). Thus, the employer is protected from being tried or punished again for the same offence.
A person's involvement in a single incident may give rise to more than one criminal charge, as long as those charges are not for the same offence. In order for the fatal claim premium adjustment policy assessment increase to be prohibited, there must be sufficient correspondence between the elements of the OHSA offence and the grounds upon which the assessment under Board policy is being increased.
A person's involvement in a single incident that results in conviction for an offence may also subject that person to a number of other negative legal consequences. Many of these consequences are not regarded as punishments for the same offence for the purposes of s. 11(h) of the Charter.
The employer was responsible for allowing the set of circumstances that resulted in the death of one of its workers. The employer was convicted and fined under the OHSA. It also faced increased premiums costs under the WSIA. The Panel found insufficient correspondence between the OHSA charge and the grounds for the premium increase. The premium increase occurs when there is a workplace fatality regardless of whether the employer is charged or convicted under OHSA. Also, an employer may be convicted under OHSA but face no premium increase if it was not expecting an experience rating rebate.
Further, the purpose of OHSA and prosecutions under that Act is the promotion of health and safety at work through enforcement of specific standards. The purpose of the fatal claim premium adjustment policy, based on its own wording and the circumstances surrounding its creation, is to avoid providing an experience rating rebate reflecting reward for good health and safety practices to employer who are responsible for fatalities involving their workers. The size of the premium increase is tied only to the size of the employer's experience rating rebate and not to factors indicating unsafe nature of the employer's working conditions.
The Panel concluded that the policy did not violate s. 11(h) of the Charter. The fatal claim premium adjustment policy applied to the employer.
The appeal was dismissed.