WSIAT Decision No. 88/16 was released in May 2016. In this decision, the Panel denied the appeal of the employer, the Toronto Star Newspapers Limited. The employer sought to overturn the decision of a WSIB Appeals Resolution Officer that had granted the worker loss of earnings (“LOE”) benefits and labour market re-entry (“LMR”) services after the worker had been laid off of work. The employer argued that the worker had voluntarily resigned. The WSIAT Panel concluded that the worker had been involuntarily laid off and that the employer did not have suitable modified work available.
In August 2016, the employer initiated a judicial review application in the Ontario Divisional Court seeking an order quashing the WSIAT decision as well as declaratory relief. In the alternative, the employer requested an order remitting the appeal back to the WSIAT for a de novo hearing before a different panel.
The judicial review application was heard by Justices Kiteley, Nordheimer and Edwards on June 23, 2017 in Toronto. In a decision released on July 26, 2017, Toronto Star Newspapers Limited v. Workplace Safety and Insurance Appeals Tribunal, the Divisional Court granted the application and ordered that the WSIAT's decision be quashed. The Court also provided the employer with declaratory relief, declaring that except for a short time between the worker’s surgery and his recovery period, the worker was not entitled to LOE benefits or LMR services.
Following the release of the Divisional Court’s decision, the WSIAT made an application for leave to appeal to the Ontario Court of Appeal. The WSIAT’s application was denied by the Ontario Court of Appeal in January 2018.
The worker worked for the employer as a part-time pressman. In June 2008, he injured his left shoulder and missed one day of work. The worker then returned to modified duties, which he performed between June 2008 and November 2008. Between November 2008 to May 2009, the worker did not work for the employer as he was on a medical leave of absence for non-compensable reasons.
On May 7, 2009, the worker was provided with notice that he was being involuntarily laid off. In accordance with this notice, the worker’s employment was to end on May 16, 2009.
On May 20, 2009, the Workplace Safety and Insurance Board (“WSIB”) granted the worker LOE benefits until a LMR assessment could be conducted. In June 2009 the worker’s benefits ceased as the worker informed the WSIB that he was off of work at that time due to non-compensable reasons.
The worker had surgery on his left shoulder in early November 2009. LOE benefits were allowed following the surgery for the acute phase of recovery. The worker was deemed to have reached maximum medical recovery on November 16, 2010 and was granted a non-economic loss award for his permanent impairment. The worker was referred to LMR services in September 2010 and his LOE benefits continued during the LMR program.
Decision No. 88/16 (May 5, 2016)
This appeal was heard by a three-member WSIAT Panel consisting of Vice-Chair Hodis, Employer Representative Member Falcone and Worker Representative Member Ferrari.
The sole issue to be determined in the appeal was whether the worker’s entitlement to LOE benefits and LMR services should be rescinded. The employer argued that the worker’s LOE benefits and LMR services should be rescinded as the worker had actually voluntarily resigned and was not involuntarily laid off.
In support of its position, the employer referred to a May 27, 2009 letter that the worker had received on that date advising him of a voluntary layoff compensation package that was available to him. The package proposed was similar to the involuntary package that had been offered previously. The worker signed and returned this letter.
In the alternative, the employer argued that the worker’s LOE benefits should be limited to the time period between his surgery and when he recovered. The employer’s manager of Health and Safety and Environment testified on behalf of the employer.
The worker had initially informed the WSIAT that he would be participating in the appeal. Eight days before the hearing was scheduled, the worker advised that he would no longer be participating. At the hearing, the employer asked that the Panel draw a negative inference from the worker’s last minute withdrawal of participation. In its decision, the Panel refused to draw an adverse inference and noted that the employer could have requested an adjournment of the hearing in order to summons the worker.
The Panel denied the employer’s appeal. The Panel found that on the evidence, the worker had been involuntarily laid off by the employer and that the employer also did not have suitable work available for the worker.
In reaching this conclusion, the Panel noted that it found the testimony of the employer’s witness to be unreliable and instead preferred the contemporaneous documentary evidence in the file. The Panel stated that the manager’s testimony was inconsistent with the documents from 2009 and therefore was not reasonable. The Panel also noted that the manager had confirmed many times that the worker was the lowest person on the seniority list, and accordingly, would have been the first person to be involuntarily laid off. As there were at least two other people with greater seniority than the worker who were involuntarily laid off, it did not make sense that the worker, who had less seniority, would not have been involuntarily laid off as well.
Divisional Court Decision (July 26, 2017)
In a July 26, 2017 decision, the Divisional Court Panel of Justices Kiteley, Nordheimer and Edwards granted the employer’s judicial review application.
In its decision, the Court confirmed that the applicable standard of review was reasonableness.
The Court determined that the WSIAT’s decision was unreasonable as it failed to reasonably examine in its reasons evidence that was inconsistent with its findings. Specifically, the Court concluded that it was unreasonable for the WSIAT to reject the un-contradicted evidence of the employer’s witness and it was unreasonable for the WSIAT to conclude that the worker’s layoff had not been changed from involuntary to voluntary. The Court also concluded that it was unreasonable for the WSIAT to find that suitable modified work was not available for the worker.
Overall, the Court concluded that the WSIAT did not provide an analysis supporting its conclusion to reject the evidence of the employer’s witness. The Court also stated that this rejection contained “an implication of institutional bias against employers”. The Court stated that even in the context of the WSIAT’s extremely strong privative clause, it would not defer to a WSIAT decision where the unreasonable findings and decision “arise from evidentiary rulings unrelated to the underlying expertise of the Tribunal”.
The Court ordered that the WSIAT’s decision be quashed and also declared that aside from the period between November 9, 2009 to April 15, 2010, the worker was not entitled to LOE benefits or LMR services. The Court also ordered that the WSIAT pay the Applicant costs.
Following the release of this decision, the WSIAT initiated an application for leave to appeal at the Ontario Court of Appeal. The WSIAT’s application was denied in January 2018.
About the author
Michelle Alton is General Counsel at the Workplace Safety and Insurance Appeals Tribunal.