Highlights of Noteworthy Decisions

Decision 1891 18 IR
R. McCutcheon
  • Jurisdiction, Tribunal (Board implicitly dealt with issue)
  • Jurisdiction, Tribunal (final decision of Board)
  • Reconsideration (clarification of decision)

In a decision of March 20, 2015, the Appears Resolution Officer determined the worker was capable of full-time work in the identified SO. Decision No. 1891/18I allowed an adjournment to permit the worker to pursue a separate final decision of the Board on the suitability of the SO of cashier. However, the worker had difficulty in obtaining a final decision, as the Board did not render an initial decision on the SO.

Decision No. 1891/18I did not explicitly rule that there was no jurisdiction over the SO issue but, rather, gave effect to the adjournment request. Accordingly, it was open for the worker to take the position that the SO issue was implicitly addressed in the ARO decision under appeal, and request a reconsideration or clarification of Decision No. 1891/18I.
As a matter of statutory interpretation, the phrase "final decision of the Board" ought to be construed broadly and purposively to determine the scope of the Tribunal's jurisdiction. This approach is consistent with the statutory purposes of the WSIA. The parties as well as the compensation system benefit from a broad approach to jurisdiction which resolves workplace disputes efficiently and with less cost.
The Chair emphasized the undesirability of "jurisdictional ping pong." A strict interpretation of s. 123 of the WSIA has the potential to create this ping pong effect where workers and/or employers are tossed back and forth between the Board and Tribunal, resulting in delays, a lack of finality, and inconsistency with section 1. The Chair also noted that Tribunal case law has found jurisdiction over issues implicitly considered by the Board at the final level of decision-making.
The determination of the worker's LOE benefits necessarily required consideration of whether the SO was correct. That is, the suitability of the SO was the "deep issue" underlying the determination of the worker's LOE benefit entitlement. The ARO's decision hinged on the suitability of the SO.
Throughout the history of this case, there was some discussion of whether the worker missed his opportunity to object to the suitability of the SO. In the view of the Chair, the worker's need to object to a decision on an SO did not crystallize until there was sufficient evidence for the worker to assess the suitability of the WT/LMR program. This will typically be when the worker completes or attempts to complete the WT/LMR program and the Board renders a decision on the worker's LOE benefit entitlement.
The Chair clarified the Decision No. 1891/18I by stating the Tribunal has jurisdiction to consider the worker's SO in this appeal, as it was an issue implicitly addressed in the ARO decision under appeal.