In a significant recent decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the WSIAT performed an analysis of whether the WSIB’s application of the WSIB’s Fatal Claims Premium Adjustment Policy (FCPAP) violated the Canadian Charter of Rights and Freedoms (Charter) provisions in s. 7 regarding security of the person or s. 11(h) regarding double jeopardy. The Panel’s conclusion that the Policy did not violate ss. 7 or 11(h) of the Charter flowed from a purposive analysis of the Workplace Safety and Insurance Act (WSIA) and the Occupational Health and Safety Act (OHSA) which is instructive on the respective jurisdictions of decision makers under each.
The March 8, 2019 Decision No. 2346/12, 2019 ONWSIAT 616 (CanLII) dealt with an employer’s appeal of the WSIB’s denial of a premium adjustment that it had been expecting in 2008. The employer had been expecting to receive premium rebate of over $1,000,000, under the New Experimental Experience Rating (NEER) experience rating plan based on its accident record for the years 2005, 2006 and 2007. However, on October 30, 2008, a worker died as a result of a workplace accident. By application of the terms of FCPAP Policy (Operational Policy Manual, Document No. 14-02-17), the WSIB denied this rebate to the employer. Instead, the WSIB applied a premium increase equivalent to the NEER refund the employer was entitled to receive. The employer was as a result not entitled to its previously expected experience rating rebate.
In addition to the loss of its anticipated experience rating rebate in 2008 as a result of the fatal accident that took place, the employer was convicted and fined under the OHSA as a result of the circumstances surrounding the accident that occurred.