Highlights of Noteworthy Decisions

Decision 790 19
12/04/2021
R. McCutcheon - M. Falcone - S. Roth
  • Incarceration
  • Onus of proof
  • Presumptions (termination of re-employment)
  • Re-employment (non-compliance) (limitation period)
  • Re-employment (termination)
  • Loss of earnings {LOE} (termination of employment)
  • Parties (representation) (obligations of representative)

The worker, a crane operator, sustained significant injuries to his left shoulder and neck in January 2000. He returned to modified work following the accident, but was terminated in May 2000 after he failed to report for work because he was incarcerated. He was released from incarceration in October 2000 and was not rehired by the employer. In 2014, the worker requested LOE benefits from October 2000. The Board found that the worker had not met the three month time limit to request an investigation into the employer's compliance with its re-employment obligations, and that the worker was not entitled to LOE benefits.

The worker's appeal was allowed in part.
The appeal regarding the extension of time was dismissed. The lengthy delay had a detrimental impact on the employer's ability to adduce evidence to rebut the statutory presumption that it had not met its reemployment obligations by terminating the worker. The people involved in the matter no longer worked for the employer. In the alternative, the employer had rebutted the presumption by showing that the termination was not caused by the work-related injury, but because he had failed to report to work due to his incarceration.
The worker was entitled to LOE benefits. Under Board policy, incarceration has no effect on LOE benefits where the work injury prevents a return to work. The worker continued to have an impairment due to his injury and had made reasonable efforts to mitigate his losses, including attempts at various jobs, education, and training. At the time of the 72-month LOE review, the worker was pursuing his Ontario Secondary School Diploma, which constituted a self-directed LMR plan that was not complete at the time of the review. The Board was to provide an LMR assessment and determine if the worker would benefit from LMR services.
There was no onus on the worker to understand the Board policy that may have applied regarding the termination of his employment. The worker's lack of understanding of his potential entitlement to LOE benefits did not prejudice his entitlement to those benefits. With regard to investigating the employer's re-employment obligations, the extension of the time limit had to be balanced against the prejudice caused by the delay.
There is no formal onus of proof on a party at the Board or in proceedings before the Tribunal, subject to certain statutory exceptions. Tribunal jurisprudence and Board policy demonstrate that the system is meant to be inquisitorial, rather than place a formal legal burden on the parties. Although a recent Tribunal decision questioned this longstanding approach, the interpretation in that decision was not consistent with Tribunal jurisprudence and did not take into account the statutory scheme as a whole. The decision interpreted s. 125(2) of the Act as creating an onus of proof on an appellant. However, this interpretation was more consistent with the Tribunal having a purely appellate function, when Tribunal jurisprudence has consistently held that the Tribunal conducts a hearing de novo. The purpose of s. 125(2) is not to create an onus on an appellant, but rather to provide a non-binding framework for the processing of an appeal by outlining the central issues of concern.
The Tribunal's inquisitorial powers do not extend to making a party's case for them or marshalling evidence on a party's behalf. Parties and their representatives have a responsibility to present the evidence that is within their control to produce.