- Loss of earnings {LOE} (duration)
- Human rights (discrimination) (age)
- Loss of earnings {LOE} (eligibility) (impairment)
- Charter of Rights (equality rights) (discrimination) (age)
The worker was employed as a driver. On February 12, 2018, he was in a motor vehicle accident (MVA) while in the course of his employment. The worker objected to the limitation of the duration of LOE benefits to only two years after the accident date. The worker appealed to the Tribunal. In his Notice of Appeal, he argued that the limitation of LOE benefits to two years of benefits after the accident date discriminated against him because of his age.
It was noted that the Board determined that 100% of the costs for this claim were to be transferred to the employer of the tractor trailer that struck the worker (T Co). The Tribunal gave notice of this appeal to both the worker's employer and the employer bearing the costs after the cost transfer, T Co. Neither party chose to participate in this appeal.The issue to be determined in this appeal was whether the worker was entitled to any LOE benefits beyond two years after the accident date. The Panel denied this appeal.The worker submitted the following arguments: 1) the amount of compensation he received, in general, was inadequate for the nature of his injuries and the impact they had on his life and ability to work; 2) in interactions with Board staff, the worker was not given good and correct information, and he was not treated well; and 3) the two-year limit on LOE benefits for a worker 63 years or older was unfair and discriminated against him based on his age.With respect to the first argument, the Panel noted that under the legislation, the scheme of benefits is intended to replace the worker's right to sue for damages in court. In this case, as a result of the accident and resulting injuries, the worker was paid LOE benefits, health care benefits, and granted a NEL award.Next, regarding the worker's second argument, the Panel determined that it only had jurisdiction to review the correctness of the decisions the Board made, not the information or advice individual Board staff may have provided or failed to provide to the worker.Lastly, it was noted that the third argument was the worker's main argument, as mentioned in his Notice of Appeal and his written submissions. The ARO decision had confirmed that the two years of LOE benefits was the maximum allowable under the WSIA. The Panel referred to the relevant section of the WSIA that governs the payment of LOE benefits. Section 43(1)(c) of the WSIA provides that LOE benefits can be paid two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury. Furthermore, it is the earliest of the possible dates that will apply in determining the end of LOE benefit payments. As the worker was over 63 years old at the time of the accident, this section would apply to limit the duration of LOE benefits to two years from the accident date.The worker did not argue the correctness of this decision. Rather, he submitted that section 43(1)(c) unfairly discriminated against him on the basis of age, contrary to the Charter of Right and Freedoms and the Ontario Human Rights Code. The Panel noted that parties who wish to argue that a provision is contrary to the Charter or the Human Rights Code must follow the procedures set out in the Tribunal's Practice Direction on Procedure When Raising Human Rights or Charter Question. These procedures were not followed in this case. In addition, pursuant to section 7.1 of the Practice Direction, the Tribunal will not normally address a Charter or Human Rights issue. Therefore, the Panel determined that the implicit Charter argument that the worker raised in this appeal was not properly before it.The Panel did state, however, that if the Charter argument about age discrimination had been properly advanced before the Panel, it would have determined that the argument could not succeed. The reason being that the issue of whether section 43(1)(c) contravenes the Charter had previously been addressed by this Tribunal and the Courts, and had already been settled. The issue was addressed in Decision No. 512/06, which found that section 43(1)(c) did not violate the Charter. This decision was then upheld on a request for reconsideration in Decision No. 512/06R, and again upheld by the Ontario Superior Court of Justice (Divisional Court) in an application for judicial review in Gouthro v. Workplace Safety and Insurance Appeals Tribunal. Furthermore, in a recent Tribunal case, Decision No. 483/18, the Panel applied Gouthro to find that section 43(1)(c) was constitutionally valid.