Decision #99/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 30, 2003, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on July 30, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 11, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond May 11, 2003.

Decision: Unanimous

Background

While employed as a cleaner/buffer machine operator on May 11, 2001, the claimant sustained a chemical burn to his right hand. The initial diagnosis rendered was 1st and 2nd degree burns. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits commenced on May 14, 2001.

On November 4, 2002, a WCB case manager confirmed to the claimant that his wage loss benefits would end on May 15, 2003 (as opposed to May 11, 2003) which was approximately 24 months following his accident date (the claimant's 67th birthday) due to the following factors:
  • the WCB considered the claimant to be unemployable in today's labour market.

  • treatment which the claimant received to his right hand has been ineffective.

  • Section 39(3) of The Workers Compensation Act (the Act).
On January 10, 2003, Review Office considered the case based on an appeal submission from the claimant's advocate dated January 2, 2003, with respect to the above decision. It was the advocate's position that the case manager's decision to apply Section 39(3) of the Act was discretionary in nature and discriminatory given the claimant's sponsored immigrant status.

Review Office indicated in its decision that it did not share the advocate's viewpoint that the decision to limit the duration of benefits in accordance with section 39(3) of the Act was a discretionary ruling. It was the Review Office's opinion that the legislation expressly prohibited payment of wage loss benefits beyond 24 months when the claimant was 63 years or older at the commencement of his/her loss of earning capacity. As it was considered that the case manager did not have the authority to extend wage loss benefits beyond May 11, 2003 given the prevailing legislation, Review Office determined that wage loss benefits must end effective May 11, 2003. In March 2003, the claimant's advocate appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who suffered a severe chemical burn to his right hand as a result of a workplace accident in May 2001. His claim for compensation was accepted and benefits paid accordingly.

As noted above in the Background section, his benefits were terminated as of May 2003, pursuant to statutory requirements, which are noted below. That decision was upheld on reconsideration by the Review Office. He appealed that decision to the Appeal Commission.

For the appeal to be successful, the Appeal Panel would have to determine that the relevant statutory provision is discretionary and is open to a different interpretation than that reached by the Case Manager and Review Office. Alternatively, as argued by the claimant's advocate, we would have to find that the relevant section of the statute should be set aside as it is in conflict with other provincial or federal legislation. We did not come to either determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant and his representative.

The following sections of the WCA are relevant to our decision:
39(2) - Duration of wage loss benefits
Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.


39(3) - Exception re workers over 62 years
Where a worker is 63 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 24 months following the date of the accident.
In the case before us, it was determined by the case manager that the claimant was unemployable due to the permanent effects of his compensable injury. As a result, in applying subsection 39(2)(a), we can conclude that the loss of earning capacity would not end. In most cases, where loss of earning capacity does not end, benefits are paid until age 65, when other benefits, such as CPP, OAS and other pension plans, if any, begin to pay.

Subsection 39(3) provides an exception to this latter provision. This provision does apply to the claimant, in that he was 64 years old at the time of his accident. Under this section, he was entitled to receive benefits for 24 months.

The board's interpretation of this subsection of the Act is that no more than 24 months of benefits are to be paid. The claimant's advocate argued that there is room for discretion in this part of the Act. He focussed on the word "may", arguing that this word allows the board to pay more than a maximum of 24 months.

In a memo to file, in December 2002, the case manager wrote that his "interpretation of the legislation indicates the "may" means we reserve the right to stop benefits within the 24 month period - for example if the claimant was to recover from the effects of the compensable injury."

Our conclusion in this regard is that the case manager's interpretation is correct. The clear intention of subsection 39(3) is to limit wage loss benefits to persons 63 years of age and older when their compensable injury occurs, to 24 months.

As a result, we conclude that the decisions of the case manager and the Review Office were correct.

Are provisions of the WCA discriminatory?

The claimant's advocate presented an alternative argument to the effect that, in terminating benefits at age 65 (with the noted exception), the Act was discriminatory. He argued that this provision of the Act subjects the claimant to differential treatment based on his age. This, he argued, is in violation of The Human Rights Code of Manitoba (the HRC), as well as the Canadian Charter of Rights and Freedoms (the Charter).

Prior to the hearing, the claimant's advocate had a number of telephone conversations with the Registrar of the Appeal Commission. In those discussions, he indicated his intention to argue that the WCA was discriminatory, based on the Charter. In a letter to the advocate, the Registrar wrote that, if he intended to pursue this line of argument, he would have to present argument as to whether or not the Appeal Commission had the jurisdiction to consider Charter issues.

At the hearing, he presented his argument, not as a violation of the Charter, but as being contrary to the Manitoba Human Rights Code.

In support of this position, he presented us with two decisions of the Human Rights Commission, in which they found mandatory retirement ages to be discriminatory.

In both of those cases, the employer had a mandatory retirement age. In both, the workers wanted to continue to work and were physically and mentally capable of doing so. The Human Rights Commission found that it was not a reasonable occupational requirement that persons be of a certain age in order to perform the duties of their jobs.

The claimant's advocate argued that, since the claimant's only income was his compensation benefits, we should regard the WCB as his employer. On this basis, he asked us to grant similar relief to the claimant.

However, he did not present us with any argument as to whether or not we had the authority to refuse to apply a section of the WCA on the basis that it contravened the HRC.

On occasions in the past, other Appeal Panels have concluded that they did not have such authority. We note that our Ontario counterpart has come to the same conclusion. In WCAT Decision No. 468/94, the panel wrote: "In our view, it is the role of the Ontario Human Rights Commission to decide whether there has been a violation of the Code." We have come to the same conclusion.

In setting out our reasons for coming to this conclusion, we will attempt not to be overly "legalistic". As a result, this discussion will not be exhaustive, but will address the key principles laid down by Canadian courts.

We were not provided, nor do we have, case law which addresses the ability of administrative tribunals to consider HRC matters. We are, however, of the view that the principles in this regard are the same as those which apply to a tribunal's ability to hear Charter cases. Thus, our consideration will look at the jurisprudence in that area.

The most comprehensive court consideration in this regard is a decision of the Nova Scotia Court of Appeal in 2000.1 In that case, the court looked at whether or not the Nova Scotia Workers Compensation Appeal Tribunal had the authority to consider Charter issues. Specifically, did the appeal tribunal have the authority to find that a provision of the Nova Scotia WCA violated the Charter?

The court concluded that it did not. It found that "the Act makes it clear that WCAT's role is to provide an independent and prompt review of the Board's application of the Act, not to determine whether the Legislature has exceeded the constitutional limits of its authority."

In its reasons, the Nova Scotia court relied on a so-called trilogy of decisions of the Supreme Court of Canada which considered the authority of administrative tribunals to determine constitutional questions.2

The Nova Scotia court concluded that there are three main principles emerging from this trilogy of cases:
First … "The question of a tribunal's authority to refuse to apply provisions of its enabling statute on Charter grounds is first and foremost a question of statutory interpretation. …. the relevant inquiry is not whether the tribunal is a court but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter."

Second … "The tribunal's power to interpret and apply the Charter will generally not be inferred from the tribunal's authority simply to interpret and apply its own enabling statute. What is required is an express or implied grant of authority to the tribunal to interpret or apply 'any law necessary to its findings' …. or to address 'general questions of law' …. or to apply 'the law of the land to the disputes before them' ..."

Third … "Where there is no express grant or withdrawal of authority to decide questions of law, one may be implied from the scheme of the Act and the role of the tribunal."

The Manitoba Workers Compensation Act does not provide the express grant of authority set out in the second principle above. It does not specifically state that this Appeal Commission can decide questions of law. On the other hand, there is no express withdrawal of such authority.

It is arguable that language in the Manitoba WCA may be interpreted as implying such authority. Subsection 60.8(1) states:
Subject to section 60.9, the appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of

(a) appeals under subsection 60.1(5);

(b) determinations under subsection 68(4);

(c) any matter referred to it by the Board of Directors.

The Supreme Court of the Northwest Territories has also considered whether that territory's Workers Compensation Appeal Tribunal had Charter authority.3 In that case, the court ruled that the phrase "determine all matters and questions arising" amounts to an implicit grant of jurisdiction to decide questions of law.

The N.W.T. court found further support for its position in that the WCAT was conceived as an expert tribunal and was protected by a strongly worded privative clause. The court found compelling the fact that the tribunal was the final level of administrative appeal.

Based on its readings of the Supreme Court cases and the NWT statute, the court concluded that the NWT WCAT did have the authority to interpret its enabling statute on Charter grounds. (It should be noted that, to our knowledge, this case was not appealed to a higher court.)

As noted above, the Manitoba WCA contains the very same language as the NWT act in respect of determining all matters. And, the Manitoba WCA also contains a strong privative clause.

However, there is one very important difference between the two statutes. The provision in the Manitoba WCA, which gives the appeal commission the "exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions" is qualified by the phrase: "Subject to section 60.9".

Section 60.9 reads, in part:
Where the Board of Directors considers that the appeal commission has not properly applied the Act, regulations or a policy of the Board of Directors, it may stay the decision of the appeal commission pending rehearing of the matter under this section and
(b) on written notice to all persons who have a direct interest in the matter, direct that the matter be reheard by the Board of Directors, or by a committee of the Board of Directors, in which case the Board of Directors or the committee has all the powers and authority of the appeal commission ….
While this is a power that has not, to our knowledge, ever been exercised, it is clear that the legislature intended that the final level of administrative appeal rest with the Board of Directors, at least in exceptional cases. From the wording of Section 60.9, it is also clear that the Appeal Commission is expected to properly apply the Act and not to determine whether the legislature has exceeded the limits of its authority.

The NWT court based its conclusion on two key elements: the implicit grant of authority to determine questions of law and the fact that the WCAT is the final level of appeal. The Manitoba Appeal Commission enjoys only the first of those elements. Thus, we are of the opinion that we cannot follow the jurisprudence of the NWT court.

(We would note that the findings of the NWT court are not binding outside of the territory. However, we found its reasoning to be particularly helpful, in that it is the only case which has considered statutory language very similar to ours.)

Policy reasons

We also found very persuasive comments made by the Supreme Court of Canada in its decisions on this matter, and reiterated by the Nova Scotia Court of Appeal, to the effect that there are very compelling policy reasons for not granting Charter authority to administrative tribunals. Paramount among these is that such authority would, to a large extent, negate some of the principal reasons for establishing administrative tribunals, which are that administrative bodies offer an informal, inexpensive and relatively speedy forum for dispute resolution.

Conclusion

While the foregoing discussion has focussed on Charter matters, the principles are, to our minds, the same. We were asked to not apply a section of the WCA on the basis that it violated the Manitoba Human Rights Code. The foregoing considered applications to not apply sections of certain statutes, in that they violated the Canadian Charter of Rights and Freedoms.

It is our conclusion that the Appeal Commission does not have the authority to find that sections of The Workers Compensation Act are discriminatory. In our view, it is the role of the Human Rights Commission to do so.

Given this conclusion, the advocate's alternative argument that the WCA is discriminatory must fail. Our earlier conclusion, that the decision of the board was correct, stands. Thus, the claimant is not entitled to wage loss benefits beyond May 11, 2003.

Accordingly, the appeal is dismissed.

Footnotes

References

1Martin v. Nova Scotia (Workers Compensation Board), [2000] NSJ No. 353, 2000 NSCA 126.

2Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.

3Northwest Territories (Workers Compensation Board) v. Nolan, [1999] N.W.T.J. No. 12; 45 C.C.E.L. (2d) 215 (S.C.).

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of September, 2003

Back