|
--SUMMARY--
|
|
|
|
Decision No. 1529/04I2
|
21-Feb-2008
|
R. McCutcheon - J. Donaldson - D. Beattie
|
|
Human rights
Jurisdiction, Tribunal (human rights legislation)
Words and phrases (services)
|
|
In Decision No. 1529/04I, the Panel found that the Board clearly intended to use the Combined Values chart to reduce NEL awards of workers with prior NEL awards, but not for workers with prior non-compensable impairments or impairments subject to a pension award. The hearing was adjourned and would reconvene to consider arguments concerning the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.In this decision, the Panel considered whether the Tribunal has jurisdiction to apply the Human Rights Code and, if so, whether the Human Rights Code applies to benefits payable pursuant to the WSIA.In Tranchemontagne v. Ontario (Director, Disability Support Program), the Supreme Court of Canada noted that, by s. 47(2) of the Human Rights Code, the Ontario legislature has given the Human Rights Code primary over all other legislative enactments. In Nova Scotia (Workers’ Compensation Board) v. Martin, the Supreme Court stated that administrative bodies are empowered to decide questions that may presumptively go beyond the bounds of the enabling statute and decide issues of common law or statutory interpretation that arise in the course of a case properly before them.The Panel noted s. 2.1 of the WSIA, enacted in 2005, which states that provisions that require a distinction based on age apply despite ss. 1 and 5 of the Human Rights Code. Implicitly, the Code applies to all other matters arising under the WSIA.The Panel concluded that the Tribunal has jurisdiction to apply the Human Rights Code to the matters before it.Section 1 of the Human Rights Code provides that every person has a right to equal treatment with respect to services. The word “services” is not defined but s. 10 provides that services does not include a levy, fee, tax of periodic payment imposed by law. The Panel had to determine whether benefits under the WSIA should be considered a service and, if so, whether the benefits should be excluded because they are a periodic payment imposed by law.As a general principle, an Act should be interpreted as being remedial and given such fair, large and liberal interpretation as best ensure the attainment of its objectives. In addition, there is authority for the proposition that human rights legislation in particular should be given a broad and inclusive interpretation. There are several decisions of courts in other Canadian jurisdictions that take this approach in finding that workers’ compensation benefits are services within the meaning of parallel human rights legislation in other provinces.The Panel concluded that the provision of benefits under the WSIA falls within the definition of services in the Human Rights Code.Section 10 of the Human Rights Code excludes periodic payments imposed by law from the definition of services. In considering the interpretation to be given to “periodic payment” the Panel found it appropriate to consider those words in the context of the other words levy, fee and tax that precede it in s. 10. Both levy and tax connote a payment to an authority and a fee is a payment made in exchange for a service of privilege. Benefits received by an individual are not congruent with the meaning of the other words. Considering the context of the words, as well as the legislative history and transcripts of committee debates, the Panel concluded that “periodic payment” was meant to apply to payments analogous to taxes or levies, that is, payments to a government authority, rather than benefits received by individual from a government or quasi-governmental authority.The Panel noted that a number of Tribunal decisions have found that various types of workers’ compensation benefits are periodic payments imposed by law and are, therefore, excluded from the protection of the Human Rights Code. The Panel concluded that this line of decisions should not be followed. The panels in those decisions did not have the benefits of detailed submissions on the issues and tended to adopt a Tribunal decision that was released prior to the Supreme Court decision that highlighted the privileged status of human rights legislation.The Panel concluded that the Tribunal has jurisdiction to consider arguments raised under the Human Rights Code and that benefits payable under the WSIA are not excluded from the definition of services in the Code.The hearing will reconvene to consider the remaining issues regarding the Human Rights Code and the Charter of Rights.
|
|
17 Page(s)
|
|
References:
|
Act Citation
WSIA 2.1, 123, 126Other Case Reference
[w1908s]
CASES CONSIDERED: Berg v. Univ. of British Columbia, [1993] 2 S.C.R. 353 (S.C.C.) consd; Canada Post Corp. v. Smith (1998), 159 D.L.R. (4th) 283 (Ont. C.A.) affg (1996), 88 O.A.C. 121 (Ont. Div. Ct.) refd to; Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435 (S.C.C.) refd to; Jenkins v. Prince Edward Island (Workers' Compensation Board) (1986), 31 D.L.R. (4th) 536 (P.E.I. C.A.) refd to; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504 (S.C.C.) consd; O'Quinn v. Nova Scotia (Workers' Compensation Board) (1995), 131 D.L.R. (4th) 318 (N.S. C.A.) consd; Saskatchewan (Workers' Compensation Board) v. Saskatchewan (Human Rights Commission) (1998), 163 D.L.R. (4th) 336 (Sask. Q.B.) consd; Tranchemontagne v. Ontario (Direction, Disability Support Program), 2006 SCC 14, 266 D.L.R. (4th) 287 (S.C.C.) consd
CROSS-REFERENCE: Decision No. 724/03; Decision No. 1529/04I (2007), 81 W.S.I.A.T.R. (online)
OTHER STATUTES CONSIDERED: Human Rights Code, R.S.O. 1990, c. H.19, preamble, ss. 1, 5, 10, 47(2)
PRACTICE DIRECTIONS CONSIDERED: Procedure When Raising a Human Rights or Charter Question (2007), 81 W.S.I.A.T.R. (online)
TRIBUNAL DECISIONS CONSIDERED: Interim Decision No. 24 (1986), 1 W.C.A.T.R. 93 consd; Decision No. 13/90 (1990), 13 W.C.A.T.R. 314 not folld; Decision No. 468/94 (1995), 35 W.C.A.T.R. 101 not folld; Decision No. 794/97 (2004), 69 W.S.I.A.T.R. 1 consd; Decision No. 2452/05I (2006), 77 W.S.I.A.T.R. (online) not folld; Decision No. 553/93 not folld
|
|
Style of Cause:
|
|
|
Neutral Citation:
|
2008 ONWSIAT 547
|
|
|
|
|
|
|
