- Charter of Rights (life, liberty and security)
- Merits and justice
- Experience rating (fatal claim premium adjustment)
The accident employer appealed two issues: a) whether a Fatal Claim Premium Adjustment (FCPA) of $829, 098.29 was appropriately applied to the accident employer's WSIB accounts for the 2018 year; and, b) whether that Fatal Claim Premium Adjustment violated the employer's rights under section 7, subsection 11(d), and, or, subsection 11(h) of the Charter.
The Panel denied the appeal.The Panel found that the WSIB acted within the scope of its statutory authority when it established the FCPA policy, and that the FCPA policy is authorized and consistent with section 82 of the WSIA as directed by the WSIB, pursuant to subsection 126(8). In addition, the policy falls within the scope of WSIB policy authority established in section 83 over which the Tribunal does not have the jurisdiction to hear or decide appeals. The FCPA policy requires only two factual findings: a determination that a traumatic fatality occurred and a determination that the employer was entitled to a refund in the year of the fatality. The FCPA does not require a finding that a violation of the OHSA has occurred. If it is established that a traumatic fatality occurred and that the employer was entitled to a refund in the year of fatality, then "a premium increase is applied to the employer of the deceased worker equivalent to the refund."The Panel found that the Compliance Officer erroneously applied a standard analogous to negligence or tort under common law, a standard which is not set out in the FCPA policy. The Panel agreed with the reasoning of Decision No. 2346/12I2, which places particular significance on the WSIB's decision not to establish a standard of care as a condition of the FCPA. Further, the decision states that the Merits and Justice policy cannot be used to introduce a standard of care where the WSIB has deliberately chosen not to do so. The Panel agreed with the definition of "exceptional circumstances" proposed by Decision No. 62/20R. Thus, the following test should be used for determining "exceptional circumstances" which is most consistent with the FCPA policy and the Merits and Justice policy: "do the alleged exceptional circumstances constitute an unexpected non-work-related factor which made a significant contribution to the fatality?" Only if the answer is in the affirmative would the merits and justice of the case then justify an exception to the application of the FCPA. Applying this test to the facts, the Panel found that there was no unexpected non-work-related factor which made a significant contribution to the fatality. Therefore, the Panel did not find that exceptional circumstances existed such that the application of a premium increase constituted an absurd or unfair result that the WSIB never intended.The Panel found that the intention of the FCPA was to apply to "the employer" and therefore, the Merits and Justice policy could not be applied to restrict the FCPA policy's application to the operation at which the fatal accident occurred. The premium increase was applicable to "the employer", the person in law registered with the WSIB, which included all seven Ontario operations, not only the division at which the worker performed work. There were no exceptional circumstances such that the application of the premium to all the employer's operations in Ontario constituted an unintended absurd or unfair result. The Panel concluded that section 7 of the Charter does not provide protection for the employer corporation's economic rights as affected by the FCPA policy, as it had not been established that the imposition of such a penalty amounted to an interference with anyone's life, liberty or security of the person (see Decision No. 2346/12). In addition, the application of the FCPA did not constitute "an offence" in the meaning of section 11 of the Charter because the FCPA does not meet the two-part test set out by the Supreme Court of Canada in Guindon v. Canada for the application of the section 11 protections. By applying the two-part Guindon test, the Panel did not find that the FCPA constituted either a proceeding which is "by nature" criminal, or that a "true penal consequence" flowed from the sanction.