COURT FILE NO.: 190/06
DATE: 20070402
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
THE WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
AND IN THE MATTER OF THE WORKERS’ COMPENSATION ACT, R.S.O.,
1990, c.W.11, s. 40 (as amended) AND WSIB CLAIM NO. 18521468-4
D.O.A.: MARCH 17, 1992
RE: ZELJKO JOVIC
Applicant
- and -
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
BEFORE: CARNWATH, MATLOW & JENNINGS JJ.
COUNSEL: Antonin I. Pribetic, for the Applicant
Gillian Shaw, for the Respondent
HEARD: March 9, 2007
E N D O R S E M E N T
CARNWATH J.:
[1] Zeljko Jovic applies for judicial review of the January 19, 2004 decision, and the August 19, 2005 reconsideration decision of the Workplace Safety and Insurance Appeals Tribunal (“Tribunal”). The issue to be decided is whether the Tribunal should have calculated Mr. Jovic’s earnings on the basis of the province-wide collective agreement wage rate in force at the date of the accident to which he was entitled, instead of calculating his earnings on the actual wage he was being paid at the date of the accident, some $5 less per hour than called for in the collective agreement.
BACKGROUND
[2] Mr. Jovic was a professional drywall taper. He was a member of the International Brotherhood of Painters and Allied Trades Union (“Union”). The Union was party to a province-wide collective agreement that bound all employers that hired Mr. Jovic. The wage rate in the collective agreement was $25.20 per hour, based on a 40-hour workweek, plus benefits and 10% vacation pay.
[3] Mr. Jovic came to Canada from Croatia in 1988. He became a member of the Union in 1989 and was employed with his uncle as an apprentice. His pay was consistent with the collective agreement.
[4] In 1991, Mr. Jovic left to fight a war in Croatia. He returned to Canada and began work with the accident employer sometime between December 1991 and January 20, 1992. However, he was paid only $20.00 per hour instead of the rate provided for in the collective agreement. He complained of this on numerous occasions to his foreman, who always assured him that his pay would be corrected. It never was.
[5] On March 17, 1992, Mr. Jovic fell and injured his lower back, head and right leg. The Workers’ Compensation Board (the “Board”), in accordance with s. 40 (1) (a) of the pre-1997 Workers’ Compensation Act (“pre-1997 Act”), calculated Mr. Jovic’s earnings for the purpose of receiving benefits as being $20.00 per hour instead of the wage provided for in the collective agreement of $25.20 per hour. Mr. Jovic appealed to an Appeals Resolution Officer.
[6] The Officer upheld the Board’s calculation. While it was clear that Mr. Jovic was a member of the Union and that the collective agreement required that he be paid $25.20 per hour, there were written “contracts” between Mr. Jovic and the accident employer indicating that he was actually paid $20.00 per hour. There was also viva voce evidence that Mr. Jovic was actually paid $20.00 per hour. Mr. Jovic appealed this decision to the Tribunal.
THE TRIBUNAL’S DECISION
[7] To understand the Tribunal’s decision, it is helpful to refer to the applicable sections of the pre-1997 Act:
40.(1) In determining the average earnings of a worker, the Board shall,
(a) calculate the daily or hourly rate of the worker’s earnings with the employer for whom the worker worked at the time of accident as is best calculated to give the rate per week at which the