Highlights of Noteworthy Decisions

Decision 1169 20 I
21/05/2021
R. McCutcheon - D. Thomson - M. Tzaferis
  • Intervenors
  • Parties (participation) (Board)
  • Tribunal counsel (role of)
  • Procedure (human rights issue)
  • Procedure (Charter of Rights issue)

This was one of four batched appeals regarding the issue of calculation of LOE benefits for workers covered under the Seasonal Agricultural Worker Program (SAWP), in particular whether the SEB/SO was to be based on jobs available in the local Ontario labour market or in the labour market in the worker's home country.

In this interim decision, the Panel made the following directions regarding the hearing of the appeal:
1. The proceedings would be bifurcated between the hearing of the merits of the appeal, followed by consideration of any Charter of Rights and Freedoms and Human Rights questions if necessary.
2. The Office of the Employer Adviser and the Office of the Worker Adviser would be invited to participate as intervenors. The employer was not participating and the participation of the OEA would ensure the employer perspective was heard. The OWA's submissions were to be limited to points that did not duplicate submissions made by counsel on behalf of the workers in the appeals.
3. Consent should be obtained before sharing information between the parties and the intervenors.
4. The WSIB would not be asked to participate as amicus curiae, but an anonymized version of the written submissions filed by the Board's General Counsel in Decision No. 1773/17R would be added to the record. After a review of the authorities, the Panel noted the following general principles: the Tribunal must guard its adjudicative independence and carefully scrutinize the Board's role in appeals; participation by the Board should not be at the expense of fairness to any party; and the Board's participation as amicus curiae is not an opportunity to argue that its decision was correct or bolster a decision. The Panel found it was unnecessary to invite the Board to participate as amicus curiae. The first stage of the proceeding involved interpretation of how the statute and policies applied to the case and affected entitlement to LOE benefits, which was squarely within the scope of the Tribunal's expertise. Tribunal counsel could obtain any necessary background documentation from the Board. The Ontario Attorney General intended to participate in any consideration of constitutional and human rights challenges, which ensured submissions from a wide variety of perspectives. The Board's position was included in the reconsideration submissions in Decision No. 1773/17R, which were to be added to the record.
5. Tribunal counsel would be asked to attend the hearings and to make submissions and provide other assistance as necessary.
6. The Panel would provide further directions as necessary on remaining matters such as scheduling, amount of time for the hearing, and witnesses.