Court Quashes WSIAT Decision

The Divisional Court recently reviewed a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) concluding the calculation of earnings decision was correct in an employer’s contributions to health and pension plans are excluded from the worker’s pre-injury earnings. The Board had determined that the earning’s basis do not include these payments. The worker applied to the Tribunal to have these employer’s contributions included in the earnings. The request was denied. The Vice-Chair of the Tribunal found that “the contributions were not earnings within the meaning of s.2 of the Workplace Safety & Insurance Act”.

The Court reviewed the Tribunal’s decision and indicated that the Vice-Chair failed to take into account the legislative history of the applicable provisions and the government’s explanation for various amendments to the Worker’s Compensation Act. The failure to consider this and to assess its overall weight in the context of the facts and law rendered the decision “patently unreasonable”.

The Court made the following statement: “The Vice-Chair purported to follow Board policy but it’s unclear whether the Board was aware or considered this legislative history and explanation in formulating its policy on employer contributions. What is striking in this case is the total failure by either the WSIB or WSIAT to take the legislative history and the government’s explanatory purpose into account in any way”. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and nature of the law. While the Court did indicate that the Vice-Chair erred in failing to consider the legislation, they did not conclude that an injured worker’s earnings should in fact include pension contributions paid by the employer. The Court instead set aside the decision and referred the decision back for a re-hearing. This result is pending. The Tribunal has been directed by the Court to consider the legislative history however, the amount or weight that the Tribunal will give this information is entirely up to the Tribunal. In the end, this may not change the law and result may remain the same and employer’s contributions to pension benefits may never be found to form part of the worker’s pre-injury earnings.