- Assessment of employers (retroactivity)
- Merits and justice
The employer first registered an account with the WSIB effective October 22, 2018. The employer's operations were classified under Rate Group 606, Classification Unit 6012-001, entitled "Grocery Stores" at that time. A classification change was made to NAICS Code 454390 "Other direct selling establishments", class I4, effective January 1, 2022. The issues to be determined in this appeal were: a) whether the effectiveness date (January 1, 2022) was correctly determined with respect to the reclassification of the employer, or whether it should be made retroactive to January 1, 2020; and b) whether the employer was entitled to a time extension to object to the classification decision.
The Panel allowed the appeal. The employer was entitled to a variance of the effective date of reclassification to NAICS Code 454390, entitled "Other direct selling establishments", from January 1, 2022 to January 1, 2020. The alternate submission regarding a time extension was moot.OPM Document No. 14-02-06, entitled "Employer Premium Adjustments", explains that premium or premium rate adjustments made by the WSIB are generally "limited to January 1 of the third year" in terms of the applicable retroactivity period. There are some "exceptions" to this approach, which includes "classification" changes to the employer's account, where the WSIB policy generally calls for associated premium adjustments being limited to "January 1st of the current year". There is Tribunal case law which supports that the effectiveness date for classification changes can be extended beyond January 1st of the current year, including by reference to the Merits and Justice policy, which provides that there may be rare cases where the application of a relevant policy would lead to an unfair result that the WSIB never intended. A decision-maker "may depart from a policy if it can be shown that the case has exceptional circumstances that justify doing so".The Panel determined that the circumstances of the present case were sufficiently exceptional to warrant a departure from OPM Document No. 14-02-06 with respect to the retroactivity date contemplated for classification changes. The employer identified the need for a classification change in 2020, which was reasonable and appropriate given that their direct competitor had the benefit of a different classification. The WSIB had prejudiced the employer by erring in the classification and withholding transparent particularization for their assessment process. The employer had been diligent and forthright in its dealings with the WSIB about this matter throughout 2020 and 2022.