CITATION: Rustum Estate v. Ontario (Workplace Safety and Insurance Tribunal), 2010 ONSC 1033
DIVISIONAL COURT FILE NO.: 481/09
DATE: 20100212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J.O, Ferrier, and McCombs, JJ.
Fatme Rustum, Estate Trustee for the Estate of Abbis Rustum, deceased, and Sandra Martin (on their own behalf, and on behalf of all others similarly situated)
Applicants
– and –
Ontario Workplace Safety and Insurance Tribunal
Respondent
Marcus A. Lennox and Ken Peacocke, for the Applicants
Brad Elberg, for the Respondent
HEARD: February 3, 2010
THE COURT
REASONS FOR JUDGMENT
OVERVIEW
[1] This application for judicial review was argued with the companion case of Chaudhari v. Ontario Workplace and Insurance Tribunal. As in the Chaudhari case, this application originally included an additional application for certification as a class action. However, as in Chaudhari, the parties have agreed that this Court should determine only the application for judicial review. Any issues related to class action certification should be dealt with on a separate motion before a judge of the Superior Court of Justice.
[2] This application concerns permanent disability entitlements under the Workers’ Compensation Act, R.S.O. 1990, c. W.11 (the “Act”). The Applicants, Fatme Rustum and Sandra Martin (“Rustum/Martin”) submit that the Tribunal erred in interpreting the relevant legislation to mean that the maximum permanent disability supplement is capped at the amount of a full old age security pension.
STANDARD OF REVIEW
[3] As in Chaudhari, the Applicants argue that the standard of review of the Tribunal’s decision is correctness. For the reasons set out in the Chaudhari judgment released concurrently with this judgment, we conclude that the standard of review is reasonableness.
[4] We turn now to the merits of the application, applying the standard of review of reasonableness.
WAS THE TRIBUNAL DECISION REASONABLE?
[5] The Rustum/Martin Applicants were awarded permanent supplements under s. 147 (4) of the Act. As we indicated earlier, the issue in this application is whether it was reasonable for the Tribunal to conclude that the maximum permanent disability supplement cannot exceed the amount of a full monthly pension for old age security (“OAS”).
[6] The relevant provisions of s. 147 are ss. (4), (8) (9) &(10):
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.
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. R.S.O. 1990, c. W.11, s. 147 (1-8).
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. R.S.O. 1990, c. W.11, s. 147 (9); 1994, c. 24, s. 33 (1).
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. R.S.O. 1990, c. W.11, s. 147 (10); 1994, c. 24, s. 33 (2).
[7] It can be seen that ss. 147(4) imposes a duty on the Board to give a supplement to a worker if the criteria in ss. 147(4)(a) or (b) are met. Subsections 147(9) and (10) are formulas to be used to calculate supplement amounts for pre-1985 and pre-1989 injuries respectively. Subsection 147(8) provides that a s. 147(4) supplement is not to exceed the amount of a full monthly OAS pension.
[8] The Board policy recognizes the ss. (9) and (10) formulas, but applies ss. (8) to require the s. 147(4) benefits to be capped at the worker’s OAS amount.
[9] The Applicants argue that the Board policy is unreasonable and therefore the Tribunal’s decisions are unreasonable. They argue that the ss. (8) OAS cap should not trump the provisions of ss. (9) and (10). They argue that there is an ambiguity or inconsistency in the legislation and where a lesser amount would be awarded under ss. (8), ss. (9) and (10) should prevail.
[10] We do not agree that there is any ambiguity or uncertainty in the relevant provisions under s. 147 of the Act. It is an axiom of statutory interpretation 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 worker’s OAS amount. The Board policy gives s. 147(8) its plain meaning: that permanent supplements under s. 147(4) are to be capped at the worker’s OAS level. It certainly cannot be said that such an interpretation is unreasonable.
[11] The Rustum/Martin applications are therefore dismissed.
[12] The Respondent does not seek costs. We agree that it is not appropriate to order costs in this case.
J.D. Cunningham. A.C.J.O.
L.K. Ferrier, J.
J.D. McCombs, J.
Released: February 12, 2010
CITATION: Rustum Estate v. Ontario (Workplace Safety and Insurance Tribunal), 2010 ONSC 1033
DIVISIONAL COURT FILE NO.: 481/09
DATE: 20100212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J.O, Ferrier, and McCombs, JJ.
BETWEEN:
Fatme Rustum, Estate Trustee for the Estate of Abbis Rustum, deceased, and Sandra Martin (on their own behalf, and on behalf of all others similarly situated)
Applicants
– and –
Ontario Workplace Safety and Insurance Tribunal
Respondent
REASONS FOR JUDGMENT
Released: February 12, 2010