Workers' Compensation Board (N.W.T. and Nunavut) v. Mercer et al., (2014) 569 A.R. 153

• Judge: Schuler, Bielby and Veldhuis, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 22, 2013
• Jurisdiction: Northwest Territories
• Citations: (2014), 569 A.R. 153

WCB v. Mercer (2014), 569 A.R. 153; 606 W.A.C. 153 (NWTCA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.052

In The Matter Of The Human Rights Act, S.N.W.T. 2002, c. 18 (as amended)

In The Matter Of a decision by Shannon Gullberg Human Rights Adjudication Member dated 10 August, 2007, concerning a complaint filed by Phillip Mercer against the Workers' Compensation Board of the Northwest Territories and Nunavut

Workers' Compensation Board of the Northwest Territories and Nunavut (appellant/appellant) v. Phillip Mercer and Northwest Territories Human Rights Commission (respondents/respondents)

(A-1-AP-2013-000004)

In The Matter Of The Human Rights Act, S.N.W.T. 2002, c. 18

And In The Matter Of a complaint filed on October 13, 2005 by Philip Mercer against the Workers' Compensation Board of the Northwest Territories and Nunavut

And In The Matter Of an adjudication of the complaint by Human Rights Adjudication Panel Member Shannon P.W. Gullberg dated August 10, 2007

Philip Mercer (appellant/respondent) v. Workers' Compensation Board of the Northwest Territories and the Northwest Territories Human Rights Commission (respondents/appellant/respondent)

(A-1-AP-2013-000005; 2014 NWTCA 1)

Indexed As: Workers' Compensation Board (N.W.T. and Nunavut) v. Mercer et al.

Northwest Territories Court of Appeal

Schuler, Bielby and Veldhuis, JJ.A.

February 6, 2014.

Summary:

A seasonal worker suffered an employment-related injury. He received less workers' compensation than would have been paid to a permanent worker who suffered the same injury. As a result, he made a complaint to the territorial human rights commission that he had suffered discrimination on the basis of his social condition, a prohibited ground within the Human Rights Act (HRA). The adjudicator concluded that the Workers' Compensation Board of the Northwest Territories had discriminated against Mercer on the basis of his social condition in assessing his claim for workers' compensation for a work-related accident, in violation of ss. 5 and 11 of the HRA. The adjudicator declared that the practice was discriminatory under the HRA, ordered the WCB to amend its policies accordingly and to pay the worker the difference between the benefits he received and what he would have received but for the discriminatory policy. The adjudicator did not award collateral damages for humiliation and embarrassment or resulting economic loss. The WCB appealed the adjudicator's finding on discrimination, while the worker appealed her conclusion on remedy.

The Northwest Territories Supreme Court dismissed the WCB's appeal and allowed the worker's appeal. The court remitted the issue of collateral damages to the adjudicator. The WCB appealed.

The Northwest Territories Court of Appeal dismissed the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Civil Rights - Topic 1164 ].

Civil Rights - Topic 936

Discrimination - Government programs - Workers' compensation - [See Civil Rights - Topic 972 ].

Civil Rights - Topic 972

Discrimination - Facilities and services customarily available to public - Discrimination on basis of social condition or source of income - A seasonal worker suffered an employment-related injury - He received less workers' compensation than would have been paid to a permanent worker who suffered the same injury - As a result, he made a complaint to the territorial human rights commission that he had suffered discrimination on the basis of his social condition, a prohibited ground within the Human Rights Act (HRA) - The adjudicator concluded that the Workers' Compensation Board of the Northwest Territories had discriminated against Mercer on the basis of his social condition in assessing his claim for workers' compensation for a work-related accident, in violation of ss. 5 and 11 of the HRA - The WCB's policy discriminated against the worker on the ground of his social condition because, under it, the WCB did not assess the worker's pre-accident income (a primary component in the calculation of his workers' compensation entitlement) on the basis of his salary at the time of the accident but rather on the basis of his entire income in the year prior to being injured, including that from both his salary from employment and employment insurance (EI) benefits received - Had he been a permanent worker, the WCB would have assessed his pre-accident income on the basis of his salary at the time of the accident - Had his entitlement been calculated on this basis he would have been entitled to receive approximately $265 more in benefits every two weeks than otherwise paid - The adjudicator declared that the practice was discriminatory under the HRA - The reviewing judge affirmed the decision - The Northwest Territories Court of Appeal dismissed WCB's appeal - The adjudicator's decision was reasonable - It fell within the range of justifiable, transparent and intelligible decisions open to the adjudicator - Further, the reviewing judge correctly concluded that "it was reasonable for the adjudicator to find that the WCB's practice of establishing seasonal workers' levels of remuneration on a basis which excluded consideration of any EI benefits received during the year prior to injury was prima facie discriminatory" - See paragraphs 27 to 43.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - A seasonal worker suffered an employment-related injury - He received less workers' compensation than would have been paid to a permanent worker who suffered the same injury - As a result, he made a complaint to the territorial human rights commission that he had suffered discrimination on the basis of his social condition, a prohibited ground within the Human Rights Act (HRA) - The adjudicator concluded that the Workers' Compensation Board of the Northwest Territories had discriminated against Mercer on the basis of his social condition in assessing his claim for workers' compensation for a work-related accident, in violation of ss. 5 and 11 of the HRA - The adjudicator declared that the practice was discriminatory under the HRA, ordered the WCB to amend its policies accordingly and to pay the worker the difference between the benefits he received and what he would have received but for the discriminatory policy - The adjudicator did not award collateral damages for humiliation and embarrassment or resulting economic loss - The worker appealed the adjudicator's conclusion on remedy - The reviewing judge allowed the worker's appeal and remitted the issue of collateral damages to the adjudicator - The adjudicator did not address the worker's claim for collateral damages and given the absence of reasons, she was unable to determine whether that decision was reasonable - Collateral damages were potentially available to the worker under s. 62(3) of the HRA which granted the adjudicator broad remedial powers - The WCB appealed - The Northwest Territories Court of Appeal dismissed the appeal - The reviewing judge was correct in her conclusion that it was not possible to determine if the adjudicator's decision to deny compensation for collateral loss was reasonable in the absence of express reasons for that conclusion - See paragraphs 44 to 50.

Civil Rights - Topic 5667.1

Equality and protection of the law - Particular cases - Workers' compensation - [See Civil Rights - Topic 972 ].

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - [See Civil Rights - Topic 972 ].

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - [See Civil Rights - Topic 1164 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 23].

Watson v. Workers' Compensation Board (Alta.) et al. (2011), 502 A.R. 207; 517 W.A.C. 207; 2011 ABCA 127, refd to. [para. 23].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 25].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 25].

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 28].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 2010 ONCA 593, refd to. [para. 31].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 33].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 43].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 43].

Burke v. Newfoundland and Labrador Association of Public and Private Employees et al. (2010), 294 Nfld. & P.E.I.R. 230; 908 A.P.R. 230; 2010 NLCA 12, refd to. [para. 49].

Statutes Noticed:

Human Rights Act, S.N.W.T. 2002, c. 18, sect. 1(1), sect. 5(1), sect. 11(1) [para. 15].

Counsel:

S.R. Paul, for the appellant, Workers' Compensation Board;

A.K. Akgungor, for the respondent, Northwest Territories Human Rights Commission;

A.F. Marshall, for the respondent, Philip Mercer.

This appeal was heard on October 22, 2013, by Schuler, Bielby and Veldhuis, JJ.A., of the Northwest Territories Court of Appeal. The following reasons for judgment reserved were filed at Yellowknife, N.W.T., by Bielby, J.A., on February 6, 2014.