Martin v. Workplace Safety and Insurance Appeals Tribunal, 2016 ONSC 7364

DIVISIONAL COURT FILE NO.: DC 31/15

DATE: November 25, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BEFORE: Thorburn, Tausendfreund and Harper, JJ.

BETWEEN:

Sandra Martin and Robert Slack Applicants

– and –

Workplace Safety and Insurance Appeals Tribunal Respondent

COUNSEL:

M. Lennox, for the Applicants

B. Elberg and D. Revington, for the Respondent, Workplace Safety and Insurance Appeals Tribunal

Thorburn J.

OVERVIEW

[1] The Applicants, Sandra Martin and Robert Slack, seek judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and its Reconsideration Decisions in respect of their claims (WSIAT numbers 493/13, 493/13R (for Martin), and 827/13 and 827/13R (for Slack)).

[2] The issue on this Application is the interpretation of section 147(13) of the Workers’ Compensation Act, R.S.O. 1990, c. W.11.[^1]

[3] Both Applicants sustained work related injuries. The Workplace Safety Insurance Board[^2] provided the Applicants with a financial supplement in accordance with section 147(4) of the Act. Section 147(4) provides that the amount of the supplement is subject to the limits in subsections (8), (9) and (10) of section 147. Subsection (8) sets a cap on the amount payable by way of income supplement.

[4] A review and recalculation of the supplement was made as required by section 147(13) of the Act. The words in section 147(13) refer to subsections (9) and (10) but not to the cap on the supplement in subsection (8).

[5] At the time of the review and recalculation, the WSIAT imposed a cap on the supplement due to the Applicants in accordance with section 147(8) of the Act.

[6] The Applicants claim that the Tribunal’s review and recalculation of the supplement should not contain a cap as section 147(13) contains no such limitation and any such limitation is contrary to the intention of the legislators and the plain meaning of the legislative provision.

[7] The Respondents claim that the limit was clearly envisaged by the legislators and is consistent with the wording of the Act and of section 147 as a whole. Moreover they claim that since there is a cap on the initial supplement payable, there must also be a cap on any supplement payable upon review and recalculation.

THE LEGISLATIVE PROVISIONS

[8] The relevant provisions of section 147 of the Act read as follows:

Permanent supplement

(4) Subject to subsections (8), (9) and (10), the Board shall give a supplement to a worker,

(a) who, in the opinion of the Board, is not likely to benefit from a vocational rehabilitation program in the manner described in subsection (2); or

(b) whose earning capacity after a vocational rehabilitation program is not increased to the extent described in subsection (2) in the opinion of the Board. (emphasis added)

Amount of supplement

(8) The amount of a supplement under subsection (4) shall not exceed the amount of a full monthly pension for old age security under section 3 of the Old Age Security Act (Canada), including amendments thereto.

Idem

(9) The amount of a supplement under this section for a worker with a pre-1985 injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability, $200 and 75 per cent of the worker’s average earnings, if any, after the injury equals 75 per cent of the worker’s pre-injury average earnings.

Idem

(10) The amount of a supplement under this section for a worker with a pre-1989 injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability, $200 and 90 per cent of the worker’s net average earnings, if any, after the injury equals 90 per cent of the worker’s pre-injury net average earnings.

Recalculation

(13) The Board shall review a supplement given under subsection (4) in the twenty-fourth month following the award and in the sixtieth month following the award and recalculate the amount of the supplement in accordance with subsections (9) and (10).

THE EVIDENCE

Sandra Martin

[9] Sandra Martin sustained a repetitive movement injury during her employment as a poultry deboner in 1988. She was laid off work. She returned to work in July 1992 at reduced hours and in a different position. She was laid off in January 1993.

[10] In 2004, the Tribunal found that she had developed fibromyalgia which was work related. She was entitled to a permanent supplement under s. 147(4) of the Act. The amount of the supplement was calculated in accordance with s. 147(10) and capped pursuant to s. 147(8).

[11] Martin appealed this decision. She claimed the amount should have been calculated according to s. 147(10) and should not have been capped according to s. 147(8).

[12] The Tribunal upheld the original calculation, which was capped.

[13] Martin sought judicial review of that decision. In Rustum Estate and Sandra Martin v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2010 ONSC 1033, 258 O.A.C. 201 (Div. Ct.), the Divisional Court upheld the Tribunal’s decision. It found that,

[A] statute should be read harmoniously in accordance with its plain language and in a manner that gives meaning to all of its provisions. On the Applicants’ interpretation, ss. (8) would be superfluous – if the formulas contained in ss. (9) and (10) were to prevail in all cases, there would be no need to provide for a maximum supplement equal to the workers’ OAS amount. The Board policy gives section 147 (8) its plain meaning: that permanent supplements under s. 147(4) are to be capped at the worker’s OAS level.

[14] That finding is not contested on this Application.

[15] Two years later, in 2013, Martin’s permanent supplement was reviewed and recalculated by the Tribunal in Decision No. 493/13, pursuant to s. 147(13). The recalculated amount was again capped according to s. 147(8).

[16] In this Application, Martin claims the Supplement should have been calculated only in accordance with subsection 147(10), not subsection 147(8).

Robert Slack

[17] Robert Slack sustained a lower back injury during his employment as a loader and operator in 1989. Because he was not able to approximate his pre-injury earnings following rehabilitation training, the Workplace Safety and Insurance Board found that he was entitled to a monthly supplement pursuant to s. 147(4) of the Act. In calculating the amount, the Board invoked subsections 147(4), (8) and (10).

[18] Two and five years later, the permanent supplement was reviewed and recalculated in accordance with s. 147(13). The Tribunal applied the cap set out in section 147(8), although there is no specific reference to subsection 147(8) in section 147(13).

[19] In response to a query, a Claims Adjudicator confirmed that the amount of the supplement was equivalent to the Old Age Security benefit, which is approximately $500 per month.

[20] Slack appealed this cap on the earning supplement payable to him, arguing that the s. 147(4) benefit should not have been capped by invoking s. 147(8) when it was recalculated at the two and five-year mark. (Decision No. 827/13)

[21] The Tribunals interpreted the review and recalculation in section 147(13) of the Act to include a cap in accordance with section 147(8) of the Act, such that the supplement does not exceed the amount of a full monthly pension for Old Age Security.

JURISDICTION AND STANDARD OF REVIEW

[22] This court has jurisdiction to hear this matter pursuant to sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[23] The parties agree that the standard of review of decisions of the Workplace Safety and Insurance Appeals Tribunal is reasonableness. (Roach v. Ontario (Workplace Safety & Insurance Appeals Tribunal), [2005] O.J. No. 1295 (C.A.).)

[24] The legislators included a strong privative clause such that the Tribunal is to be accorded deference. Section 123(4) of the Act provides that, “A decision is final and not open to question or review in a court.” Moreover, the Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 40-52, notes that the courts are to give deference to the decision-making process of adjudicative bodies with regard to both the facts and the law. This is particularly so when they are interpreting their home statute.

[25] Applying the reasonableness standard requires a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker and the nature and complexity of the decision will be taken into account. Where there is no dispute on the facts and the tribunal need only determine whether an individual breached a provision of its statute, the range of reasonable outcomes is narrower. (Mills, at para. 22).

THE APPLICANT’S ARGUMENT

[26] The Applicants claim that the Tribunal’s findings are not reasonable. The intention of the legislation is to provide a benefit to workers and should be interpreted broadly. Moreover, subsection 147(13) clearly provides that the supplement is to be determined again on the 2nd and 5th years after the supplement was first awarded.

[27] The Applicants claim the Board should recalculate the supplement in accordance with the provisions in subsections 147(9) or (10) as specifically provided for in section 147(13). Since section 147(13) does not specifically refer to the cap in section 147(8), that limit should not have been placed on the amount to be awarded on reconsideration.

[28] The Applicants suggest that if the Respondents’ interpretation were correct, the drafters should have made reference to section 147(8). Moreover, if the conditions for reconsideration are no different than those used to make the initial calculation, then section 147(13) has no purpose.

[29] Lastly, the Applicants suggest that the recalculations in years 2 and 5 are not arbitrary: they have a clear purpose that dovetails the parallel wage loss benefits in other parts of the Act.

ANALYSIS OF THE TRIBUNAL’S DECISION AND CONCLUSION

The Principles of Statutory Interpretation

[30] Courts must determine the meaning of legislation by looking at its context, having regard to the purpose of the legislation, the consequences of proposed interpretations, and the presumptions and special rules of interpretation. After taking these into account, the court must then adopt an interpretation that is appropriate. (R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) at p. 131, as cited in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), 1996 153 (SCC), [1996] 3 S.C.R. 919, at para. 164).

The Intention of the Legislators

[31] The stated purpose of this legislation as set out in section 1 of the Act is to “provide fair compensation to workers who sustain personal injury arising out of and in the course of their employment.” Since the purpose of the legislation is to confer a benefit on workers, the statute should be interpreted broadly. (Rizzo v. Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 36.)

[32] Upon introducing this legislation, the then Minister of Labour referred to the rights of workers provided for in this legislation as follows:

For this group of injured workers, the legislation will provide for supplementary benefits equal to the full monthly pension payable under section 3 of the Old Age Security Act. (Cited in Workers’ Compensation Appeals Tribunal, Decision No. 716/95, at para. 97.)

[33] Statutes are also to be interpreted in a manner consistent with policy objectives as expressed by the legislators. Section 126 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (the legislation now in force) provides that if there is an applicable Board Policy, the Appeals Tribunal must apply it when making its decision.

[34] Operational Policy number 18-07-10 provides that, “The sum of the supplement, the permanent disability benefit, and 90% of the worker’s net average earnings after the injury, cannot exceed 90% of the worker’s escalated pre-injury net average earnings.”

[35] Based on the above, the intention of the legislators was that there be a cap on the supplement.

The Interpretation of section 147 of the Act

[36] The meaning of section 147(13) should be considered in the context of section 147 of the Act as a whole.

[37] The first consideration is to determine whether a worker is likely to benefit from a vocational rehabilitation program pursuant to section 147(2) of the Act. The worker is assessed by the Board and if the worker is found likely to benefit, the Board must pay the worker full supplementary benefits while the worker participates in the vocational rehabilitation program.

[38] If the worker’s earning capacity is lower and cannot be remedied by rehabilitation, the worker is entitled to a supplement pursuant to section 147(4). This is a mandatory supplement to compensate the employee for the inability of the worker to benefit from vocational rehabilitation and/or increase his earning capacity.

[39] Section 147(4) provides that these supplementary benefits shall continue until the worker becomes eligible for old age security benefits (i.e. when the worker reaches the age of 65).

[40] Subsections (8), (9) and (10) provide limits to the supplementary benefits granted pursuant to section 147(4). Subsection (8) sets a cap and provides that the amount of the supplement shall not exceed the amount of the full monthly pension for Old Age Security benefits.

[41] A reading of section 147 as a whole suggests that an eligible worker is entitled to a supplement until the worker is eligible for Old Age Security benefits. The initial assessment provides for a cap on the amount of the supplement. The review and recalculation provision refers to a review of “a supplement given under subsection (4)”. This would suggest that the intention was that any review of the initial decision would be subject to the same limitations as the initial assessment (including the cap on the amount of the supplement).

The Interpretation of section 147(13) of the Act

[42] Section 147(13) provides that the Board shall “review a supplement given under subsection (4)” and “recalculate the amount of the supplement in accordance with subsections (9) and (10)”. Unlike the initial review provision in subsection (4), subsection 147(13) does not involve a review of the worker's condition or an assessment of the worker’s vocational rehabilitation potential.

[43] Section 147(13) is simply a review and recalculation of the amount of the supplement granted pursuant to section 147(4).

[44] However, the Applicants point out that subsection 147(13) does not specifically refer to the cap on the supplement in subsection (8).

[45] The Applicants invoke the maxim expressio unius est exclusio alterius to suggest that subsection (8) could have been specifically referred to in section 147(13) and because it was not, there is no cap on the amount that can be provided upon review and recalculation.

[46] We note however, that P.-A. Côté, in The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000) at pp. 337-339, observes the following at p. 337:

… of all the interpretive arguments, it is among those which must be used with the utmost caution. The courts have often declared it an unreliable tool, and, as we shall see, it is frequently rejected.

[47] These concerns stem from the fact that much depends on context, an express reference to a matter may be unnecessary or inadvertent, and the application of this maxim may lead to inconsistency or injustice. (Turgeon v. Dominion Bank, 1929 47 (SCC), [1930] S.C.R. 67, per Newcombe J., at pp.70-71, and Alliance des Professeurs Catholiques de Montréal v. Québec Labour Relations Board, 1953 45 (SCC), [1953] 2 S.C.R. 140, per Rinfret C.J., at pp. 154, citing Farwell L.J. in Re Lowe v. Darling & Son, [1906] 2 K.B. 772.)

[48] Although section 147(8) is not specifically referred to in section 147(13), it was nonetheless reasonable for the Tribunals to conclude that there was a cap on the amount of the supplement payable to the Applicants as section 147(13) is merely a review and recalculation of the more comprehensive original determination which imposes a cap.

The Inclusion of a Cap upon Review and Recalculation would not Render the Provision of no Effect

[49] The inclusion of a cap upon review and recalculation of the supplement owed to the worker would not render the provision in section 147(13) of no effect. On the contrary, the cap provides a ceiling but there may be circumstances wherein the amount should be reduced. This is succinctly articulated by WSIAT in the following paragraphs:

[71] … let us take the hypothetical example of a worker injured in 1987, whose net, pre-accident earnings were $40,000. He received a 20% permanent disability award and participated in vocational rehabilitation services but, as a result of his disability, was able only to obtain a minimum wage job in 1990 (less than $20,000 annually). This worker would clearly be entitled to the full supplementary benefits contemplated under section 147(4)(b).

[72] For the moment, let us suppose that the same facts applied when he came up for his 24th month review - that is the same 20% permanent disability award and the same minimum wage job. If one “reviewed” his supplement at the time - that is the amount of supplementary benefits he was receiving - and then recalculated that amount in accordance with section 147(10), the worker would still be entitled to the full supplement as the supplement, his permanent disability award and his post-accident earnings would obviously not equal 90% of his pre-injury net average earnings.

[73] Now, let us suppose this same worker, in a different set of circumstances than the one imagined above, had, by the time of his 24th month review, obtained employment with net earnings of $30,000. When one “reviews” his supplement and takes into account his permanent disability award and the post-accident earnings, the total may well exceed 90% of his pre-accident earnings. Accordingly, when his supplement is reviewed and recalculated in accordance with section 147(10), his supplementary benefits will be reduced to ensure that the above does not occur.

Conclusions

[50] The stated objective of the legislator (in this case the Minister of Labour) and the Operational policy directive are consistent with the Tribunal’s interpretation that all supplements include a cap pursuant to subsection 147(8).

[51] Moreover, the Operational policy, which must be applied when rendering a decision, provides that there is a cap on the amount of the supplement as the sum of the supplement, the permanent disability benefit, and 90% of the worker’s net average earnings after the injury, cannot exceed 90% of the worker’s escalated pre-injury net average earnings.

[52] The Tribunals’ interpretation is also consistent with a plain reading of subsection 147(13) when read in the context of section 147 as a whole. A supplement awarded pursuant to subsection (4) is “[s]ubject to subsections (8), (9) and (10)” (which includes a cap on the amount). Subsection (4) cannot be more than the amount of a full monthly benefit under s. 3 of the Old Age Security Act. Subsection (13) is a review and recalculation of the “supplement given under subsection (4)”.

[53] On a plain meaning of the provisions in the statute, since the original assessment is subject to a monetary cap, it is reasonable to assume the review and recalculation is also subject to a cap. This is particularly true since the review is done without considering the broader context of the worker’s condition or assessing the worker’s vocational potential as was done in the initial assessment.

[54] The interpretation of the review and recalculation provision in section 147(13) by the Tribunals meets the objectives of the statute and is consistent with the stated purposes of the legislation and the meaning of section 147(13) when read in the context of section 147 generally and the legislation as a whole.

[55] For these reasons, we find that the interpretation of the meaning of section 147(13) by the Tribunals was reasonable.

[56] The Application is therefore dismissed.

[57] If the parties are unable to agree on costs, they may provide their respective submissions of no more than three pages, within 15 days.

“Justice Thorburn”

Thorburn J.

“Justice Tausenfreund”

Tausendfreund J.

“Justice Harper”

Harper J.

Released: November 25, 2016

[^1]: This legislation was repealed on January 1, 1998.

[^2]: Formerly the Workers’ Compensation Board.