Highlights of Noteworthy Decisions

Decision 693 20 R
2021-11-02
R. McCutcheon
  • Procedure (moot issue)
  • Reconsideration (advisability) (finality)
  • Reconsideration (clarification of decision)
  • Board Directives and Guidelines (stress, mental) (chronic)

The Board made a clarification request submitting that the interpretation of the predominant cause requirement set out in the CMS Policy adopted by Decision No. 693/20 was not consistent with the language used in the CMS Policy and cited sections 126 and 159 of the WSIA.

The Vice-Chair found that the Board framed its request as a clarification, but evidently was disagreeing with the reasoning in the original decision. Therefore, the request was one for reconsideration, rather than a clarification.
The Board also pointed out that it had been granted certain powers to formulate policy through revisions to subsection 159(2) of the WSIA. Decision No. 693/20 did not address this statutory provision in the interpretation of the CMS Policy.
The Vice-Chair found that it was not advisable for the Tribunal to reconsider the reasoning in Decision No. 693/20 with respect to the interpretation of the predominant cause standard set out in the CMS Policy.
The impugned reasoning in Decision No. 693/20 was not necessary to the outcome of the appeal. Any change to the reasoning would not affect the result of the decision. In other words, the issue raised in the Board's clarification was moot in the appeal: there was no live controversy or concrete dispute to adjudicate.
The Supreme Court of Canada decision Borowski v. Canada established a two-step analysis in the application of the mootness doctrine. First, the starting point was the general policy or practice that the Court may decline to decide a case which raises merely a hypothetical or abstract question. The second step was the consideration of the appropriate exercise of the Court's discretion to depart from the general practice to decline to hear the case informed by three principles underlying the mootness doctrine: (1) the court's competence to resolve legal disputes is rooted in the adversary system; (2) judicial economy; and (3) awareness of the judiciary's role in law-making functions.
The three principles underlying the mootness doctrine did not apply directly to the administrative context, but they were relevant by analogy.
With regard to the first principle of the mootness doctrine, it was generally recognized that the WSIAT did not adjudicate based upon an adversarial model. However, even within the WSIAT's non-adversarial context, novel legal and policy questions ought to be adjudicated in the context of a live dispute with full submissions from the affected parties, with the opportunity for intervenors to represent certain viewpoints, if appropriate. Therefore, the first factor does not weigh in favour of adjudicating the WSIB's reconsideration request in this case.
The second rationale for the mootness doctrine, that is, judicial (or, in this case, administrative) economy, was directly relevant here. In this case, the parties to the appeal received a final decision of the Tribunal on the merits of the appeal. The WSIA stipulates that the Tribunal's decisions are final (section 123(4)); the finality of Tribunal decisions is central to the Tribunal's approach to reconsideration requests. Neither party considered it an appropriate use of their time and resources to file a response to the WSIB's request for reconsideration. In order to fully and fairly address the issues raised by the WSIB through a reconsideration process, the Tribunal would likely require submissions from Tribunal counsel, and, possibly, intervenors. This would not represent a wise expenditure of the Tribunal's time and resources in the absence of a live issue in the present appeal.
The question of administrative economy may be weighed against the general public interest in having an issue addressed. Such an expenditure of resources may be warranted in cases which, although moot, are of a recurring nature but brief duration, such as interlocutory motions. Such was not the case here, however. The nature of the issue was not fleeting or time-limited in a manner similar to an interlocutory motion. The appropriate case in which to address the issue raised by the WSIB would likely eventually arise directly in an appeal to the Tribunal. While the interpretation issue raised by the WSIB in this reconsideration was a substantial one that should eventually be addressed directly by the Tribunal, it was more appropriate for it to be considered in the context of a case where the issue was relevant to parties before the Tribunal.
The third rationale for the mootness doctrine did not have as much relevance here, since the role of the Tribunal, as a creature of statute, was distinct from the role and inherent jurisdiction of a superior court. Nevertheless, addressing this legal point raised by the WSIB in the absence of a live issue in dispute may result in a "reference-like" consideration by the Tribunal. The Tribunal did not have the statutory authority to address a question as a reference.
The Board's reconsideration request appeared to raise a substantial issue of statutory interpretation in chronic mental stress claims, but it was not advisable to undertake a reconsideration process to address the issue in the present appeal, taking into account the following factors:
The clarification of the issue would have no impact on the outcome of the appeal. The issue was moot because there was no live issue or dispute.
The reconsideration process is founded upon the principle that the parties have an interest in the finality of the Tribunal's decisions.
The Tribunal had not received full submissions on the issues raised by this reconsideration request both the worker and the employer in this case declined the opportunity to comment on the WSIB's reconsideration request
It would not be a wise use of the Tribunal's resources to undertake additional steps to obtain complete submissions in the absence of a live issue in the appeal.
It was likely that an appropriate case to directly consider the issues raised by the WSIB's reconsideration request will arise in future appeals heard by the Tribunal.
The Vice-Chair acknowledged that the request put forward substantial arguments that ought to be directly addressed in future WSIAT decisions in chronic mental stress appeals, with the benefit of full submissions, stating that in future appeals which turn on the predominant cause test and/or the definition of substantial workplace stressors, as defined in the CMS Policy, the Tribunal may consider requesting submissions from Tribunal counsel; requesting submissions from the WSIB submissions as amicus curiae; inviting participation by intervenors; and/or such other means of receiving full submissions as may be deemed appropriate by the hearing panel. The WSIB Chronic Mental Stress Policy Consultation Summary (the WSIB Consultation Summary) was attached as an Appendix to this decision.
The reconsideration request was denied.