The Workplace Safety and Insurance Appeals Tribunal:
Celebrating 25 Years of Excellence
On October 1, 1985, the Workers' Compensation Appeals Tribunal ("WCAT") was legislated into existence by the Ontario Government. Prior to the creation of the Tribunal, all decisions concerning workers' compensation matters were made by the Workers' Compensation Board (the "Board"), which possessed two levels of internal appeal. The Tribunal was created to replace the Board's internal Appeal Board.
The hallmarks of this newly created Tribunal were its independence from the Board, a tripartite adjudicative model, and expertise in decision-making. The Tribunal's general mandate was, and continues to be, to hear the appeals of workers and employers who were dissatisfied with the final decisions of the Board. Prior to the Tribunal's creation, there was no external appeals body in the workers' compensation system. Finality in decision-making was difficult to achieve as decisions were often disputed by appellants and taken to the Minister of Labour, individual MPPs, the Ombudsman and the Courts for review and relief.
The creation of an external appeals Tribunal was recommended by Professor Paul C. Weiler in November, 1980, when he submitted a report entitled Reshaping Workers' Compensation for Ontario to the Minister of Labour. After much debate and public consultation, the Ontario Government introduced Bill 101, An Act to amend the Workers' Compensation Act, on June 12, 1984. Bill 101 passed final reading in the Ontario legislature on December 14, 1984. It introduced sweeping changes to the workers' compensation system in Ontario, including the creation of the Workers' Compensation Appeals Tribunal. The new Tribunal would undertake tripartite adjudication by Tribunal Panels composed of a neutral vice-chair, a member drawn from the employer community and a member drawn from the worker community. The legislation also created a roster of independent medical practitioners to advise the Tribunal on medical matters. Other significant initiatives in Bill 101 included the creation of new consultative and advisory services for workers and employers by establishing the Office of the Worker Adviser and Office of the Employer Adviser.
Both the worker and employer communities initially viewed the Tribunal with skepticism. Led by its first Chair, Ron Ellis, and a dedicated body of adjudicators and staff, the Tribunal quickly overcame this skepticism and earned the respect of both communities. The Tribunal has been recognized as a pioneer in many areas of administrative law and procedure. Its large body of case law has made it into a leader not only among workers' compensation systems in Canada, but also among administrative agencies, boards and tribunals in general.
The Tribunal's specialized expertise, and the quality of its well-reasoned judgments, is demonstrated not only through the respect that the Tribunal has garnered in the worker and employer communities, but also in the respect that has been accorded to it by the courts. The judiciary has consistently ruled that the decisions of the Tribunal are to be accorded the highest standard of deference, that of reasonableness (and prior to Dunsmuir v. New Brunswick, patent unreasonableness). In twenty-four years, no final determination of a court has overturned a decision of the Tribunal. In instances where the Ontario Divisional Court has overturned a decision of the Tribunal, the Ontario Court of Appeal has quashed the Divisional Court’s ruling on appeal.
For instance, in Roach v. Workplace Safety and Insurance Appeals Tribunal, the Ontario Court of Appeal held that "the Tribunal carefully considered all the evidence and reached, and explained, its decision. In short the Tribunal did precisely what it was supposed to do." In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), the Ontario Court of Appeal again upheld a Tribunal decision. The Court stated that “the Tribunal made no significant errors in fact-finding and the reasoning adopted to reach its conclusion is clearly outlined.” Finally, in Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), in upholding another Tribunal decision, the Ontario Court of Appeal remarked on the Tribunal’s record on Judicial review. The Court stated that the lack of judicial interference in Tribunal decisions was in part due to the legislature’s decision “to appoint to the Board and Tribunal members who are experienced in issues of workers’ compensation, and to protect the Board and the Tribunal with the toughest privative clause known to Ontario law.”
There have been two major changes to workers' compensation legislation since the creation of the Tribunal. As the Act in force at the time of a worker's injury continues to apply to the determination of that worker's benefits, the Tribunal not only has had to apply three different legislative frameworks in its history, but continues to hear cases under all three Acts.
The pre-1989 Act continues to apply to those workers injured prior to 1990. In addition to temporary benefits, it provided for permanent pensions for injured workers. The 1990 Act made a number of changes including removing the permanent pension award and replacing it with two awards, the NEL (noneconomic loss) and FEL (future economic loss). Then the Workplace Safety and Insurance Act, 1997 was passed in October, 1997. It contained the largest changes to the workers' compensation system since the creation of the Tribunal. The Tribunal's name was changed to the Workplace Safety and Insurance Appeals Tribunal. The name change reflected the former government's philosophical shift from a compensation based scheme to an insurance-based scheme. The Act also made a number of changes to the Tribunal's powers and procedures. This included a mandate that Board policy shall be applied in all Tribunal decision-making, an elimination of the requirement for tripartite hearing panels, and for the first time an introduction of time-limits for claims, objections and appeals.
Recent notable Tribunal initiatives have included the introduction of a comprehensive set of Practice Directions in 2007 and the implementation of innovative information management practices to more efficiently support the Tribunal’s adjudicative and administrative operations. Also, The Tribunal paid close attention to the Law Society of Upper Canada’s work to introduce a regulatory framework for paralegals. Tribunal staff took the initiative to notify the representative community appearing before it about the changes to legislation and the new by-laws; staff then followed through by requesting and recording representatives’ status in relation to cases before the Tribunal. In some cases, where representatives appeared not to be exempt from the licensing requirements or licensed appropriately to appear before the Tribunal, staff contacted the representative to discuss their status and, in some cases, Tribunal Counsel attended hearings to make further inquiries. The Tribunal has been highly successful in ensuring representatives who appear before it are compliant with the requirements of the Law Society Act and by-laws. This success is beneficial not only for the representation of the vulnerable people who appeal to the Tribunal, it is helping to ensure a smoother and more efficient operation of the appeals process for parties, staff, and adjudicators.
Since its creation, the Tribunal has issued over 51,000 decisions. The number of decided cases at the Tribunal has risen substantially over time, ranging from just over 400 decisions in the Tribunal's first full year of operations to over 3,000 decisions in 2009. These decisions have encompassed a wide range of issues, including the meaning of accident, complex occupational disease claims, right to sue cases, workplace stress, and constitutional/Charter issues. In each of these areas the Tribunal has consistently issued well-reasoned and thoughtful decisions, the quality of which has made the Tribunal a leader in administrative justice in Canada. The Tribunal is recognized as a premier component of the administrative justice system of Ontario whose mandate is to provide an inexpensive and impartial means by which finality and justice in workers' compensation appeals is achieved.
In order to ensure that the Tribunal's high quality of decision-making continues into the future, the Tribunal is committed to a system of "merit-based" appointments. The Tribunal is proud that it has been able to assemble a body of quality adjudicators, and is committed to ensuring that the high standard of adjudication continues into the indefinite future.
Over a quarter century, the Tribunal has evolved from a fledgling idea greeted with skepticism and uncertainty to a true leader in administrative justice in Canada. Due to the innovation and determination of the Tribunal's current Chair Ian Strachan, its first Chair Ron Ellis, and the dedication and expertise of its vice-chairs, members and staff, the Tribunal has achieved a standard that makes it the polestar and touchstone of excellence in workers' compensation in Canada. The Tribunal looks forward to continuing this tradition of excellence into the future.