Ontario’s WSIB and the Bill 127 Amendments – The power implants – What do they do? – Part II – Evidentiary Requirements Policies




This is my second post on the WSIB’s four, mysterious  power implants which Schedule 33 of Bill 127 has added to Ontario’s WSIA by means of the “Stronger, Healthier Ontario Act (Budget Measures), 2017”.  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 possible implications and portents of the second power implant – i.e., the addition of a power “to establish policies concerning evidentiary requirements for establishing entitlement to benefits  under the  insurance plan” – 159(2)(a.2)


As with the first implant, this power to “establish policies concerning…” does not, in my view, enhance the Board’ substantive powers – that is, it cannot be seen as authorizing the establishment of evidentiary requirement policies other than policies that are otherwise consistent with, and authorized by the Act.


Take, for example, the standard of proof – the most critical element of any evidentiary requirement.

Could the Board use its new policy-establishing power respecting evidentiary requirements to heighten the standard of proof governing the adjudication of some particular issue – perhaps the issue of the work-relatedness of a mental injury caused by chronic stress?

In my view, the answer is clearly ‘no’.

There is only one standard of proof applicable to the adjudication of benefit-entitlement issues in the workers’ compensation system and that standard is defined by the Act. Therefore, any policy purporting to increase in respect of any particular factual issue the standard of proof beyond that defined standard, would be inconsistent with and not authorized by the Act.

The system’s standard of proof is defined, of course, in section 119(2) of the Act:

119 (2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.

And, as the reader may recall, the SCC has reminded us in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (CanLII) that the standard of proof in workers’ compensation cases is defined by provisions such as s. 119(2).

Reading section 119(2) in the light of Fraser Health, one may safely conclude that the Ontario WSIA requires that any factual issue on which a claim for benefits depends (including, it should be noted, any medical factual issue) must be decided in favour of the claimant if the evidence establishes that the fact is at least as likely as not to be true.

This, it may be noted, is lower than the traditional civil law “balance of probabilities” standard which is typically rendered as “more likely than not to be true”.

It is important, however, not to confuse the standard of proof applicable to the proof of a factual issue and the definition of the issue itself.   For example, a policy that required the workplace stress to be the “predominant” cause of a mental impairment instead of requiring only that it has made a material or significant contribution to the impairment would be a policy concerning the interpretation of the Act – the interpretation of the words “caused” or “results from”.  It would not be a policy concerning evidentiary requirements.

Thus, if the Board were to establish a policy that required chronic workplace stress to be “the predominant cause” of a mental injury, the statutory standard of proof would still only require evidence that showed that it was at least “as likely as not” that the workplace stress was the predominant cause.

Whether a “predominant cause” requirement could be seen as being authorized by or consistent with the Act is, in the first instance, a question of the interpretation of the Act and that interpretation argument will be left for another day.  In the second instance, it is a Charter issue.


The “evidentiary requirements” label presumably also encompasses the nature of the evidence that will be required respecting a particular factual issue.   The one requirement of that kind that one might expect to appear soon in a policy concerning evidentiary requirements is a policy that instructs the Board’s adjudicators that, before concluding that a worker is entitled to benefits for a chronic-stress-based mental injury, they must have evidence as to the existence and extent of the injury from a qualified psychiatrist who has examined the worker.

One is, of course, aware of the worker and union community’s long opposition to making mental health benefits conditional on psychiatric examinations but, in my view, with or without the explicit power to establish policies concerning evidentiary requirements, the question is the same: is such a requirement consistent with or authorized by the Act – or is it in breach of the Charter?  I don’t see how the introduction of the explicit policy-making power changes the question.

The limits to the nature of the evidence the Board can require are to be found in the common-law jurisprudence respecting the principles of procedural fairness and natural justice, and the law of evidence.  They are also to be found in contemplation of the implications of the fact that the Board is not a party to a claim for benefits, as is the case with a private-sector accident insurance company, but is the judge of the claim.

Moreover, while it is reasonable to acknowledge that the Board has the power to specify the evidence requirements respecting a particular factual issue, and that the nature and breadth of the requirement it does specify is presumably a matter within the Board’s discretion, it does not follow that the Board has the power to impose whatever requirements it chooses – whether they be specified in a section 159(2) “policy” or not.

In Roncarelli, in Baker, and in C.U.P.E v. Ontario (Minister of Labour), the SCC tells us that anyone exercising a statutory discretion may not exercise it for an “improper” purpose.  The choice in the exercise of a discretion must serve – that is be congruent with – the statute’s purpose, must not be justified by irrelevant criteria, and must not ignore factors that are relevant and pertinent.

Thus, policies that specify, for example, evidentiary-requirements in the nature of hurdles seen to be established for the purpose of discouraging claimants or otherwise limiting access to benefits for reasons that are not relevant to the Act’s purpose would not be seen to be authorized by the Act, and, therefore, would be open to appeal to the Appeals Tribunal and subject to challenge under section 126.

The cutting-costs purpose

An injured worker arguing that a Board-imposed evidentiary requirement is unlawful because it has been imposed for an improper purpose may be expected to claim that the improper purpose is the arbitrary reduction of benefit entitlements or benefit levels for the purpose of cutting the Board’s cost.

The Board will argue – indeed, has argued (in its defence in Castrillo) – that cutting costs cannot be an improper purpose since the Act’s own “purpose” section (section 1) specifies that the Board is to “… provide compensation and other benefits to workers … in a financially responsible and accountable manner”.

That defence depends for its success on a court interpreting that section 1 provision as instructing the Board to be influenced by financial considerations in its adjudication of claims as well as in its management of claims.

On October 13, 2015, I had occasion in my post in this website on “Cost Averse Adjudication and the Hijacking of the Thin-Skull Rule” to examine the merits of that defence in considerable detail.  For the reader’s convenience I have reproduced that analysis below.  It does go on at some length in an already overly long posting, but it is an important issue.

As you will see, the October 13 post was written partially in response to Justice Belobaba’s decision in the Castrillo case while we awaited a decision from the Court of Appeal.

Here it is:


Distinguishing a Board’s Manager Role from its Adjudicator Role

The starting point for the case against cost-averse bias in the adjudication of claims by administrative agencies like the WSIB is recognition that, in interpreting a statute’s definitions of the system benefits, the administrative agency – the corporate entity – is not functioning as the system’s MANAGER, but as its ADJUDICATOR.  It is not a party to disputes about entitlement but the adjudicator of those disputes.

The Board would have it that the question is not what the law requires, but what the Board thinks is best in its own interest. Whereas the rule of law’s question is what does the law require.

This is true for all front-line administrators of statutory benefits, but, in pursuing the argument, I will resume referencing the specific context of the WSIB and its administration of Ontario’s workers’ compensation system.

The Rule of Law’s Baseline Position

A cost-averse bias in the Board’s exercise of its role as the system’s manager is perfectly understandable – indeed, a requirement; but the rule of law does not permit such a bias in its adjudicative role.  In defence of a cost-averse bias in the exercise of its duty to hear and decide benefit claims, the Board cannot say: “oh well, we are only doing our duty to reduce costs”.  That would be a viable defence if the Board were a party to the claims disputes, but unlike a private insurance company, it is not a party to that dispute; it is the administrator of a benefits system in the public interest and the court’s surrogate – the system’s adjudicator of claims entitlement issues.

Any close review of the WSI Act provides innumerable examples of the distinction the Act draws between the “Board’s” administrative or management function, and its adjudicative function.

Part III of the Act – the part devoted to defining the benefits – is replete with entitlement language and full of issues that can only be resolved on the basis of findings of fact by an adjudicator hearing evidence, interpreting the statute, and applying that interpretation to those findings of fact.  The Act makes it perfectly clear that the Legislature intended that in deciding entitlement claims from injured workers the Board was to play the role previously assigned to the courts – that is, the role of an adjudicator.  See in particular, the following (emphasis added):

Section 13(1) – “A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan”.  [This is only the most obvious example; see, as well, the repeated direction:  “the Board shall decide the claim”.]

Section 26(1): “No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board”;

Section 26(2): “Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependent has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer”.

See also s. 132 giving the Board the powers of a “court” – summoning witnesses, etc.

These provisions make it clear that in deciding disputed benefit claims – in interpreting benefit definitions in the course of deciding disputed benefit claims – the Board is exercising its adjudicator function not its manager function; it is, as sections 26(1) and (2) make especially clear, acting as the courts’ surrogate.

The rule of law – the principles of procedural fairness – requires an adjudicator of rights to be independent and impartial and, in the interpretation of statutory language, to adhere to the common law rules of statutory interpretation.  As we know, those rules require the words of an Act to be read impartially, in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The rule of law does not allow adjudicative interpretations to be influenced by any personal interest in the outcome of the exercise; on its own terms, the rule of law would not permit the Board’s corporate adjudicative decisions to be distorted by a declared bias in favour of minimizing the Board’s costs.

Is Section 1 Effective in Amending the Rule-of-Law Position?

But, as we know, as long as the Supreme Court of Canada remains content that the rule of law requirement for impartial adjudicators has no constitutional protection except for adjudicators actually labeled “judges”, that rule-of-law position is open to being amended by any statutory provision. And the WSIB is arguing, in essence, that that rule-of-law position has been amended in this instance by section 1 of the WSIA, the section which directs it to “provide benefits in a financially responsible and accountable manner”.

The Laws’ Requirement for Unequivocal Clarity

But we also know that for a statutory provision to be read as overriding a rule-of-law principle, the legislative intent in that respect must be “unequivocally clear”.

In Unjust by Design, that principle and the authority for that principle and the reason for that principle are addressed in detail.  See the following passages (at pages 213-214 – citations have been omitted):

… Perhaps the most pertinent example [of the requirement that statutes be interpreted in a manner congruent with “the fundamental principles of the common law”] is the rule that legislatures must not be taken to have intended to override an established rule-of-law principle or an established right unless the statutory language makes such an intention unequivocally clear.

Consider, for example, the following passages from the Supreme Court’s 2003 decision in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour) … in which in a back-handed but very clear way the Court establishes that … rule-of-law principles cannot be abrogated by legislation except with language of unequivocal clarity:

… Affirming the rule of interpretation that “courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice” (para. 21), the [Supreme] Court [in Ocean Port] nevertheless concluded that “[i]t is not open to a court to apply a common law rule in the face of clear statutory direction” (para. 22) [emphasis added by the Court]. Further, “[w]here the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence” (para. 27) [emphasis added by the Court].

The reason for placing this interpretive burden of unequivocal clarity on those who would argue that a legislature intended that the requirements of procedural fairness or other established rule-of-law rights be disregarded is to ensure that established norms such as these, are not swept away inferentially or consequentially as a result of the legislature’s not paying enough attention.

The point is made expressly in the following statement by the House of Lords in its 2000 decision in R. v. Secretary of State for the Home Department, ex p. Simms:

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual …

Is Section 1 Clear enough?

In Mr. Castrillo’s case, the requirement of impartiality in the interpretation of the Legislature’s intent is said – said by the Board – to have been abrogated by section 1.  Section 1, the Board says, effectively requires the Board to abandon its rule-of-law duty of impartiality in its adjudicator role and to adopt a cost-averse bias.

In my opinion, the wording of section 1 does not begin to provide the unequivocal degree of clarity that would be required for one to safely conclude that so dramatic a departure from rule-of-law principles was what the Legislature in fact intended.

The Board is, of course, the administrator of benefits.  In this role, it does “provide” benefits – i.e., in the sense of delivering them; writing the cheques; finding the funds to pay for them; trying through various strategies to minimize them (by, for example, promoting safer workplaces, encouraging employers to co-operate in getting injured workers back to work, finding  replacement employment, etc.).  And it is the latter “provision” of benefits in the administrative/management sense that section 1 requires the Board to perform in a financially responsible and accountable manner.

But, before it can begin to administer – i.e., to “provide” – a particular worker’s benefits, the Board must first perform its function as the adjudicator of the worker’s “claim”.  It must decide – after, as we have seen, a statutorily mandated “hearing” – the benefits to which that worker is entitled.  And it must make that decision in light of its findings of fact and its interpretation of the statutory language.

When it is adjudicating a worker’s claim, the Board cannot be said to be “providing” benefits, but only determining what benefits the Legislature requires it to “provide”.

Thus, the section-1 directive to “provide” in a “financially responsible manner” cannot reasonably be seen to apply to the Board’s exercise of its adjudicative function.  The meaning of the section is not clear enough to support so serious a departure from the rule of law.

The section did not authorize the Board’s change in the “without the law” period [from January 2012 to November 2014 when it abrogated the thin-skull doctrine as a matter of practice], nor does it authorize the November 2014 policy revisions.

In short, yes, there is something inherently illegal in the WSIB enlisting its adjudicative duties in aid of its cost reduction strategies.   And it is for that reason that it is necessary to challenge the Castrillo court’s casual suggestion to the contrary, and why an appeal of the Belobaba J. decision was very much in the public interest.

A General Conclusion

If, as I am convinced, the system pursuant to which the WSIB adjudicates benefit entitlement issues is necessarily a system of justice, we have here another instance of the administration of justice placed in disrepute by that system’s administrative body confusing its administrative role with its adjudicative role.

If systems of benefit administration such as the WSIB’s are not seen to be justice systems – or to incorporate justice systems – but to be merely systems for the exercise of managerial discretion, then, in my opinion, the basic principles of the rule of law would require us to rethink and restructure those systems.



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