Decision Nº 1169/20 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: R. McCutcheon: Chair D. Thomson: Member Representative of Employers M. Tzaferis: Member Representative of Workers
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1423
• Judgement Number: 1169/20
• Hearing Date: 16 December 2022
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 1169/20 15-Sep-2023 R.McCutcheon - D.Thomson - M.Tzaferis

• Availability for employment (relocation)

• Board policies (applicability of Board policy)

• Loss of earnings {LOE} (duration)

• Procedure (leading case strategy)

• Statutory interpretation (principles of) (large and liberal interpretation)

• Suitable employment (factors other than physical capability)

• Labour market re-entry {LMR} (eligibility)

• Loss of earnings {LOE} (employability)

• Loss of earnings {LOE} (level of benefits) (hours of work)

• Suitable occupation

• Available employment (local labour market)

• Loss of earnings {LOE} (deemed earnings) (relocation)

• Farming (foreign seasonal worker)

The Panel heard this appeal together with three other appeals which raised similar issues with respect to benefits received by workers who are injured while employed in Ontario through the Seasonal Agricultural Worker Program (SAWP). The injured workers currently reside in Jamaica. The primary issues in this appeal related to their entitlement to long-term loss of earnings (LOE) benefits and labour market re-entry services under sections 42 and 43 of the WSIA. The main issue to decide was the application of the SAWP Adjudicative Advice Document, which limits the long-term benefits for permanently injured SAWP workers to 12 weeks of LOE benefits and deems them able to work in the Ontario labour market.

The Panel concluded that the long-term LOE benefits for migrant agricultural workers ought to be based upon their ability to earn in their actual local/regional labour market. It was not appropriate to limit their entitlement to long-term LOE benefits to 12 weeks in every case without regard for their individual circumstances. Further, migrant agricultural workers are entitled to LMR assessments and services under section 42 of the WSIA in accordance with their actual labour market. The Panel declined to apply the non-binding SAWP Adjudicative Advice Document to these appeals because it concluded that it was not consistent with the language and purposes of the WSIA, including sections 1, 42 and 43, or binding Board policies.

Upon consideration of the relevant text, context, and purpose of the WSIA, the Panel found that there was no basis in the statute or binding policy to limit the LOE benefits of injured seasonal agricultural workers to 12 weeks of long-term LOE benefits without consideration of their actual circumstances, including their labour market in their home countries. The relevant provisions of the WSIA demonstrate that, where the Legislature intended to carve out unique rules for certain types of employment, or exclude certain employment from coverage, it has done so explicitly. The Panel examined the relevant Board policies and concluded that they did not restrict the labour market for calculating LOE benefits to Ontario.

The Panel found that the existence of systemic racism and the precarious employment status of SAWP workers provided relevant context for the interpretation of the evidence. The Panel found that the features of the SAWP program and the precarious and vulnerable employment status of SAWP workers provided relevant context for evaluating whether the testimony was credible.

This worker's appeal gave rise to the following issues: a) was the job of Cashier (NOC 6611) a Suitable Occupation (SO) or Suitable Employment or Business (SEB) for the worker; b) what was the appropriate amount of the worker's LOE benefits from March 1, 2013 to September 2, 2018; and, c) what was the appropriate amount of the worker's LOE benefits from the final review date of September 3, 2018. The Board had assessed a 9% non-economic loss (NEL) award for the worker's lower back injury in June 2014.

The appeal was allowed, in part.

The Panel found that Cashier was not a suitable occupation for this worker for various reasons. The Panel accepted that the LOE Adjudicative Advice Document provided a reasonable framework for evaluating entitlement to benefits during retroactive periods of entitlement. The Panel found that the worker was entitled to full LOE benefits from March 1, 2013 to September 23, 2014. During this period, she was participating in an active physiotherapy program and engaged in sufficient activity to improve her employability. As of September 24, 2014, the worker's low back condition had stabilized after a period of treatment. The Panel found that some effort to make inquiries about part-time work would have been reasonable during this time. From September 2014 to September 2018, the Panel found that the worker could likely have worked part-time, 15 hours per week, in an occupation that did not require training. The worker was entitled to partial LOE benefits based upon working 15 hours per week at the applicable minimum wage in Jamaica from September 24, 2014 to September 2, 2018.

With respect to entitlement for LOE benefits at the final review, from September 3, 2018 onwards, section 44 of the WSIA governs the review of LOE benefits and provides for a final review of LOE benefits 72 months after the injury. OPM Document No. 18-03-06 "Final LOE Benefit Review" was applied. The Panel found, in the circumstances of this case, that the worker would not benefit from LMR. Therefore, in the absence of a timely WT assessment, taking into account the worker's actual circumstances and labour market, the Panel concluded that the worker had no realistic prospect of earning income in suitable and available employment in the long-term. Therefore, the worker was entitled to full LOE benefits as of September 3, 2018, the final review date, and she was unlikely to earn any income in suitable and available employment. The worker was entitled to full LOE benefits from September 3, 2018 onwards.

73 Pages

References:

Act Citation WSIA ; Other Case Reference [w4523s] BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Documents No. 12-04-08; 15-01-03; 15-06-07; 15-06-08; 18-03-02; 18-03-06; 19-02-01; 19-03-03; 19-03-11; Adjudicative Advice Documents - Coverage and entitlement for Workers Hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program; Practice Guidelines For Ordering LOE Benefit Arrears Under WSIA CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) consd; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900 consd; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] 2 SCR 890 refd to; Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 refd to; Athey v. Leonati, [1996] 3 SCR 458 refd to; Monks v. ING Insurance Co. of Canada (2008), 90 O.R. (3d) 689 refd to; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 consd; Surdivall v. Director of the Ontario Disability Support Program, 2014 ONCA 240 (CanLII) apld; Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2015 ONSC 7289 refd to; R. v. Oakes, [1986] 1 S.C.R. 103 refd to; R. v. Morris, 2021 ONCA 680 (CanLII) consd; R. v. Theriault, 2021 ONCA 517 consd; Monrose v. Double Diamond Acres Limited, 2013 HRTO 1273 (CanLII) consd; Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C. C.A.) refd to OTHER STATUTES CONSIDERED: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F; Canada Labour Code, RSC 1985, c L-2; Budget Measures and Interim Appropriation Act, 2007, S.O. 2007, c.7; Constitution Act, 1867, R.S.C. 1985, App. II, No. 5, ss. 91, 92; Ontario Disability Support Plan Act, 1997, S.O. 1997, c. 25, Sched. B REGULATIONS CONSIDERED: O. Reg. 175/98 TRIBUNAL DECISIONS CONSIDERED: Decision No. 1773/17, 2017 ONWSIAT 2962 apld; Decision No. 1472/05R, 2010 ONWSIAT 1496 refd to; Decision No. 1214/15, 2015 ONWSIAT 1873 refd to; Decision No. 248/06, 2006 ONWSIAT 565 refd to; Decision No. 915, 7 W.C.A.T.R. 1 refd to; Decision No. 1865/12, 2012 ONWSIAT 2407 consd; Decision No. 1517/17, 2017 ONWSIAT 2413 consd; Decision No....