Highlights of Noteworthy Decisions

Decision 2091 19
15/04/2020
K. Jepson - P. Greenside - A. Kosny
  • Agreement (parties)
  • Jurisdiction, Tribunal (appealable issue) (agreement)

The employer appealed an ARO decision for the rescission of a number of entitlements that were granted to the worker including LOE and NEL benefits. After the decisions on appeal however and prior to the Tribunal hearing, the worker and employer entered into an agreement under s. 63 of the WSIA (between workers and their Schedule 2 employers) whereby the worker received a lump sum from the employer in lieu of NEL and LOE and related benefits and that all WSIB benefits payable under the claim would cease as of the date that the Board approved of this agreement. This agreement was subsequently approved by the Board.

The employer subsequently appealed three Case Manager decisions and one NEL Specialist decision, all of which were deemed final for the purposes of the appeal to the Tribunal. These appeals were added to the appeal of the ARO decision referred to above. While these appeals were added after the agreement, all of these decisions pre-dated the date of the agreement itself.
The Panel determined the first question of whether the Tribunal had jurisdiction over issues arising from s. 63 of the WSIA.
In substance any s. 63 agreement concerned entitlement to benefits under the Act and as such fell within the Tribunal's general jurisdiction over benefit appeals granted by s. 123(1). Section 123(2) listed specific sections or parts of the Act which were not included in the Tribunal's jurisdiction. Paragraph 3 of s. 123(2) specified that sections 60, 62 (certain subsections), 64 and 65 were excluded from the Tribunal's jurisdiction. Section 63 was notably omitted from this list of exclusions. The Panel found that the general principle of legislative interpretation expressio unius est exclusio alterius applied to the interpretation of this subsection.
The omission of s. 63 from the list of sections that were specifically excluded from the Tribunal's jurisdiction should be interpreted as indicating that the Tribunal did have jurisdiction over s. 63. In this regard, the Panel referred to Decision No. 1149/00, where the Schedule 2 employer and the worker engaged in settlement discussions at the Tribunal hearing and reached a proposed agreement. In that case the Vice-Chair held that the parties' agreement was consistent with the requirements of s. 63 and accepted it. This implied that the Tribunal had jurisdiction over that section.
Considering the impact of s. 63, the Panel found that the intention of such agreements was to allow the parties to bring finality to the claim through a resolution of the amounts payable "in lieu of or in satisfaction of" compensation benefits payable under the WSIA. It was closely comparable to a "full and final settlement" in a civil claim. In this regard, it was therefore no coincidence that the ability to enter into a s. 63 agreement was limited to Schedule 2 employers. Schedule 2 employers pay the claim costs of workers' claims directly (through the Board, and subject to Administration fees). Unlike Schedule 1 employers, Schedule 2 employers do not share a claim cost pool with other employers in a rate group. Recognizing that Schedule 2 employers have much more direct responsibility for claim costs, s. 63 enabled the employer to have additional control and flexibility, allowing them to essentially bargain directly with a worker to reach a settlement. The fact that s. 63 agreements were restricted to Schedule 2 employers reinforced that the intent of the section was a full and final settlement of claims closely analogous to a settlement in the civil claims context.
In this regard the Panel noted s. 63(3), which it found that this subsection reinforced that the agreement was meant to embody a mutual acknowledgement by the parties with respect to the worker's entitlements as they stood at the time of the agreement and the payment that was made under that agreement. Although the section left the parties free to choose the monetary value of the payment, the very fact of entering into the s. 63 agreement effectively crystallized the worker's entitlements as they had been determined up to that point in time. If s. 63(3) was not interpreted in this way then it would not appear to have any purpose.
In light of the agreement, the Panel dismissed the employer's appeal.