Highlights of Noteworthy Decisions

Decision 3503 18
21/01/2021
J. Smith - D. Thomson - C. Salama
  • Jurisdiction, constitutional (obligation to consider constitutional issues)
  • Procedure (moot issue)
  • Procedure (Charter of Rights issue)

Following Decision Nos. 3503/18I and 3503/18IR, found the worker would not have been entitled to LOE benefits notwithstanding the provisions in s. 44(2) and (2.1) of the Act. The worker however continued his Charter challenge in respect of these provisions.

The Panel found that this challenge was moot given the findings in Decision No. 3503/18I. First the Tribunal's Practice Direction states that when the other issues in an appeal are decided and the Charter question is no longer required, the Tribunal will not decide the Charter question. Second, the Panel found that even if the worker's LOE benefits were reviewable beyond the 72-month limitation set out in s.44, the worker would not have entitlement to LOE benefits as his loss of earnings during the period of time in question did not result from his compensable injury. Based on this finding, the worker's appeal was unsuccessful on the merits and therefore a Charter challenge of s. 44, if successful, would not change that result.
While the Panel acknowledged that a Charter challenge is not limited to an issue that results in benefits for the worker, as explained in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity.
As the Tribunal would not have such jurisdiction and the previous decision in any event would not have allowed LOE benefits, regardless of the provisions in 44(2) and (2.1); the Panel declined to hear the Charter challenge.
The appeal was denied.