THE WSIB POWER IMPLANTS – PART III

          POLICIES CONCERNING             ADJUDICATIVE PRINCIPLES

INTRODUCTION

This is my third post on the WSIB’s four, mysterious power implants inserted in Ontario’s WSIA by means of the “Stronger, Healthier Ontario Act (Budget Measures), 2017 in Schedule 33 of Bill 127.   For a description of all four of those implants see the Part I post via the link set out at the end of this post.

In this post I will address the  third power implant – i.e., the addition of a power “to establish policies concerning the adjudicative principles to be applied for the purpose of determining entitlement to benefits under the insurance plan” – 159(2)(a.3).

CONCLUSION

As with implants I and II, it is my opinion that the implanting of this explicit power to establish polices concerning adjudicative principles does not add to the Board’s powers, always implicit, to choose the adjudicative principles that will be applied in its adjudicative functions.  And whether those powers are specified in an official policy pursuant to the new section 159(2)(a.3) or merely to be found articulated in the Board’s adjudicator training materials or in the practice instructions to their adjudicators, or in the adjudicative structures the Board designs, they remain subject to the limitations inherent in the well-settled common law principles of procedural fairness (and, I would argue, the principles of natural justice).

The new power could just as well have been described as a power to establish policies “concerning the procedural fairness principles to be applied for the purpose of determining entitlement”.

Given the Board’s current circumstances, one can understand the Legislature’s decision to choose the literal “adjudicative principles” label rather than embracing the classic, procedural fairness or natural justice labels – with their explicit invocation of fairness and justice; nevertheless when we are talking about adjudicative principles we are talking about the principles defined by the law of procedural fairness or natural justice.

Procedural Fairness and the WSIB ? – HELLO

One striking aspect of of Bill 127’s initiative in creating this explicit power to establish policies concerning adjudicative principles is the attention it provokes concerning the questions of what procedural fairness principles do apply to the Board’s exercise of its function as the system’s adjudicator, and to what extent are those principles being respected or ignored in current Board processes.

Before the advent of Bill 127, these questions were managing to sit quiet, below the worker community’s radar, camouflaged under the procedural fairness cover provided by WSIAT’s availability as the system’s final, all things fair, arbiter.

It is a topic I hope to deal with in a future post.

RE