THE WSIB POWER IMPLANTS
Schedule 33 of Bill 127, the “Stronger, Healthier Ontario Act (Budget Measures), 2017”, will amend the Ontario Workplace Safety and Insurance Act in a number of ways, many of them apparently positive from an injured worker’s perspective – the addition of chronic mental stress benefits, increases in various minimum amounts, and other housekeeping amendments for example.
But there is one set of amendments whose purpose is mysterious and, because the reason for these amendments is not obvious they are understandably worrisome, perhaps particularly from an injured worker’s perspective. I refer to the amendments to the powers of the Board in s. 159(2) of the Act set out in section 8(1) and 8(2) of Schedule 33.
Sections 8(1) and (2) of Schedule 33 add four items to the Board’s “powers” – four, power implants, if you will. These are:
- The power to “establish policies concerning the interpretation and application” of the Act. (159(2) (a.1) );
- The power to establish policies concerning evidentiary requirements for establishing entitlement to benefits under the insurance plan (a.2);
- The power to establish policies concerning the adjudicative principles to be applied for the purpose of determining entitlement to benefits under the insurance plan (a.3); and
- The power to establish policies that apply different evidentiary requirements and different adjudicative principles to different types of entitlements (159 (2.1).
In today’s post, I will offer some comments on the first of these implants – the power to establish policies concerning the interpretation and application of the Act. (The other three will be dealt with in future posts.)
POWER TO ESTABLISH POLICIES CONCERNING INTERPRETATIONS
Of course, the power to establish policies concerning the interpretation of the Act is a power the Board has always assumed it had, and in fact routinely exercised – explicit or not. The most recent examples are the November 2014 policies in which the Board’s instructions to its adjudicators are based on radically changing the classic interpretation of the “arising out of” and the “results from” wording in the Act as inclusive of the thin skull doctrine, to an interpretation in which those words are deemed not to incorporate that doctrine.
So why did the Board feel it prudent to ask that this power be made explicit now?
The only explanation I can think of is that the Board or its legal advisers must have become nervous about the issue of “fettering” – the rule-of-law principle that individual adjudicators cannot be subjected to restrictions from others concerning the interpretation of the law applicable in cases they are assigned to adjudicate.
As an example, consider what a court’s reaction would be if the Chair of WSIAT were to give WSIAT members instructions directing them to interpret, say the November 2014 Board policies, as being, or not being, authorized by the Act. Obviously, a decision following such a direction would be held on judicial review to be illegal as being in breach of the no-fettering principle.
So, probably s. 152 (2)(a.1) can be characterized sufficiently as a “permit-the-Board-to- fetter” provision.
If that is its intended purpose, I can’t think there could be any reasonable objection from either the worker or employer’s perspective. Given the Board’s responsibility for the mass adjudication of hundreds of thousands claims each year, and the importance of maximizing the efficiency of the adjudication process and its consistency in those circumstances, the need for the Board to be able to make institutional decisions concerning the interpretation of the Act that are binding on its individual adjudicators seems obvious. Indeed, the SCC has said something akin to that in Martin.
Moreover, this new provisions does not change or enhance the breadth or nature of the Board’s interpretation powers as they currently exist.
THE FINAL-SAY ISSUE
If the Board were to publish a policy that incorporates an interpretation of the Act that is incorrect in law, the application of that policy will result in appeals to the Tribunal of individual decisions made on the basis of a Board adjudicator following and applying that policy. This would not be different than an adjudicator applying an interpretation – perhaps his or her own interpretation – that had not been established in a policy.
In either case, if the interpretation is in fact incorrect, appeals of the decisions in which the incorrect interpretations have been applied will lead to the Tribunal deciding that that interpretation of the Act, as applicable to the facts in the case before it, is “inconsistent with or not authorized by the Act”. Then, as required by s. 126 (4), the Tribunal will put its final decision on the substantive merits of the appeal on hold while it sends a referral of its decision on the interpretation issue, together with the Tribunal’s reasons for that decision, to the Board for its review.
Contemplation of the Board’s new, explicit, power to “establish policies concerning the interpretation and application of the Act” leads one to a consideration of how disputes between the Board and the Appeals Tribunal concerning interpretations of the Act are in fact ultimately settled.
The Board’s responsibility upon receipt of such a referral from the Tribunal is defined by section 126(8):
Within 60 days after a referral to it, the Board shall issue a written direction, with reasons, to the tribunal that determines the issue raised in the tribunal’s referral under subsection (4)
As may be seen, the Board is required to review the Tribunal’s decision (and the parties to the appeal are entitled to make submissions to the Board on that review) following which the Board is required to send a Direction to the Tribunal “that determines the issue”, together with its reasons for that Direction.
Given that wording, it is hard to argue that the Legislature did not intend that, as between the Tribunal and the Board, it was the Board that was to have the final say concerning the interpretation of the Act. This is especially true in light of the legislative history …
But this conclusion has not been conceded by the worker community. In the Appeals Tribunal’s jurisprudence in which the section 126(4) and 126(8) provisions have been addressed, one finds only one case in which the “final say” issue was in fact addressed. In that case, the worker argued that a section 126(8) direction from the Board is not binding on the Tribunal; that it should be regarded as only advice, not as a binding instruction. See Decision No. 1057/09.
As it happens, on the peculiar facts of that case, while the Tribunal panel expressed some doubt as to the merits of the worker’s argument concerning the effect of section 126(8), it did not find it necessary to decide the issue, resolving the appeal on other grounds.
Contemplation of the fact that a Board direction with reasons under section 126(8) will probably be found to be determinative in law of an interpretation issue as far as the Appeals Tribunal is concerned, prompts consideration of the role the courts may be expected to play in setting such an issue in an ultimate way.
I will address the courts’ probable role in a subsequent post.