Highlights of Noteworthy Decisions

Decision 377 21
M. Crystal
  • Detrimental reliance
  • Merits and justice
  • Schedule 1 employer (application industries)
  • Board Directives and Guidelines (employer by application)

The employer, a not-for-profit agency providing social services, opted out of coverage in 2000 for employees at its location in City A. In 2001, the employer assumed responsibility for a similar agency in City B. Coverage for the employees in City B continued under the account previously used for the employees in City A. A Board audit in November 2015 found that the employer could not have coverage only for its employees in City B, as the two locations provided the same services and were not involved in separate business activities. The employer was required to pay premiums on the earnings of its City A employees effective December 29, 2015. The employer paid the premiums but advised the Board that it would appeal.

The employer's appeal was allowed in part. The employer had to pay premiums for its City A employees, but the effective date was moved forward to January 31, 2016.
Operational Policy Manual, Document No. 12-01-02, "Employer by Application" provides that an employer may request coverage for part of its operation only where the part obtaining coverage was a business activity distinct from the rest of the operation. This policy applied to the employer, even though the employer had not made an application for coverage. The policy was intended to apply generally to employers by application. There was an implied rule in the policy document against partial Schedule 1 coverage where all of the employer's workers performed the same business activity, and this rule applied whether the employer was opting in to or out of coverage, or where partial coverage resulted otherwise. The Board committed an error in 2001 when it permitted the employer to cover its City B employees under Schedule 1 when at the same time its City A employees who were performing the same business activity had been opted out.
While the employer had not relied on the Board's advice to its detriment in relation to its funding sources such as the provincial ministry, it did rely on the Board's pre-audit direction to its detriment in the negotiation of a collective agreement that took effect in November 2015. In light of the exceptional circumstances, the Board had already advanced the retroactive date for payment of premiums from January 1, 2015 to December 29, 2015. It was appropriate to advance the date further to January 31, 2016. The employer had cancelled its private insurance effective January 31, 2016 and obtained the benefit of Schedule 1 coverage for its City A employees from that date. If the retroactive date were later than January 31, 2016, the employer would have received insurance from the Board at no cost. Payment of premiums for the City A employees from January 31, 2016 was neither absurd nor unintended within the meaning of the merits and justice policy.