Recently I revisited a WSIAT decision from last December whose interpretation of the “entitlement presumption”—a fundamental principle of workers’ compensation law—caused consternation among worker advocates when it was first released.
It’s a case that’s still worth discussing, not just because of the importance of the “entitlement presumption,” but also because we can draw a broader lesson about advocacy from it.
The entitlement presumption
To be entitled to WSIB benefits, a worker must meet several entitlement criteria. Two of them are (1) she had an accident “arising out of … her employment,” and (2) her accident occurred “in the course of… her employment.”
Each of those two criteria gives rise to its own legal test, but in some workers’ cases, the facts relating to one of the tests may be unknown, or difficult for a worker with limited resources to prove.
That’s a problem law-makers have recognized since the inception of workers’ compensation in Ontario, so they pair the two entitlement criteria with a legal presumption: if you can prove one of the criteria is met, a decision-maker must presume the other is met too, unless the contrary is shown:
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown (WSIA, s. 13(2)).
This is a fundamental principle of Ontario’s workers’ compensation law: it modifies the basic threshold for entitlement under the Act to the benefit of workers, and it has been included in every iteration of the legislation since 1914. It’s an important statutory protection for workers and as such ought not be dismissed lightly.
The Stairs Decision
Decision no. 2986/17 involved a worker who sustained a “lateral collateral ligament strain” in her knee while descending a set of stairs. The worker testified that she heard a loud popping sound while she was walked down the stairs and her leg gave out, but nothing else was unusual about her descent—she didn’t slip, twist or fall, for instance.
For ease of reference, I’ll refer to this as the Stairs Decision from now on.
There was no dispute that the worker’s injury occurred “in the course of employment”: it happened on the employer’s premises, during work hours, while she was completing a task that was part of her job.
However, the hearing panel denied entitlement because, they said, there was no evidence the injury “arose out of her employment.” The hearing panel ruled that there was no identifiable event that constituted a “work injuring process,” so the accident did not arise from the worker’s employment.
Apparently, the entitlement presumption “was discussed at length” at the hearing, but the hearing panel doesn’t summarize the parties’ arguments on that issue. They simply set out their interpretation of s. 13(2) and its application to the case in these six sentences:
For a “chance event”… it is presumed that if an accident occurred in the course of employment, it also arose out of the employment. Yet, that presumption is not irrebuttable. In our view that injury must also be established, on a balance of probabilities, to have arisen out of the employment. Put more simply the question which must be considered and determined is whether there was a work-injury process which caused or made a significant contribution to the injury. The Panel finds that there was not. (Decision no. 2986/17, at para. 22; underlining added)
The problem with this interpretation is that it puts workers who supposedly have the benefit of the presumption to exactly the same test for “arising out of… employment” that applies in disablement claims, where the presumption does not operate (because of the statutory definition of accident).
In other words, it renders the statutory presumption meaningless. That can’t be what the legislature intended.
A purposive approach?
So, what did the legislature intend? What’s the purpose of the presumption?
There’s no answer in the Stairs decision, because the hearing panel make no attempt to explain their interpretation, either from first principles or with reference to other Tribunal cases.[i]
But it turns out that the Tribunal’s cases on the presumption rarely contain a purposive approach.
There are any number of decisions which consider the content of the presumption (e.g. Decision no. 795/90L), or which simply assert what it means in a sentence or two (e.g. Decision no. 2180/17, a case the Tribunal has cataloged as a “noteworthy” decision on this issue.)
But we must go back to a 1989 decision by Ron Ellis for a meaningful purposive analysis of the presumption (Decision no. 42/89), with a brief update from Eleanor Smith in 2009 (Decision no. 1672/04, at para. 146).[ii]
This seems a remarkable absence to me, given that the purposive approach to statutory interpretation has governed in Canada for decades. As the Supreme Court said in Re Rizzo and Rizzo Shoes,  1 SCR 27:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
A lesson for advocates that goes beyond the entitlement presumption
The absence of the purposive approach in the Stairs Decision, and the Tribunal’s caselaw more generally, is a problem for workers.
The WSIA and WSIB policy are complex. If important statutory provisions are unmoored from the “scheme” and “object” of the WSIA, it’s all too easy for appeals to become exercises in technical legal arcana that forget the fundamental principles of workers’ compensation that protect workers. We lose sight of the forest for the trees.
That can only be to workers’ disadvantage.
For example, if the Stairs hearing panel had asked themselves what the purpose of the entitlement presumption was, I doubt they would have disposed of it so heedlessly. I don’t know whether the outcome would have been different for the poor worker, but the rest of us would not be left with an interpretation of the entitlement presumption that erodes it away to nothing.
But while the Stairs decision certainly requires critique, it’s not helpful to workers, or fair to the Tribunal, to fault the Tribunal for the general absence of purposive analysis.
There’s a broader lesson here for workers advocates (including me).
The Tribunal addresses the arguments we put to it; its decisions reflect our arguments, whether we win or lose. When a worker’s appeal engages any important principle, we need present the Tribunal with a fully worked up argument that grounds our interpretation of the relevant WSIA sections in “the scheme of the Act, the object of the Act, and the intention of [the legislature].”
That way we’ll reduce the incidence of thoughtless decisions like Stairs case.
And hopefully we’ll start building a more progressive body of case law, grounded in the worker-centric principles that underlie a humane workers’ compensation scheme.
That’s all the more necessary now, as we enter a period of government reaction against workers’ rights.
And it’s more achievable too, now that the Supreme Court of Canada has set out a more generous understanding of the protective purpose of workers’ compensation in Quebec (CNESST) v. Caron, 2018 SCC 3.
[i] There are other deficiencies in the Stairs hearing panel’s reasons. Other than stating the diagnosis, there’s no discussion of the medical evidence, which is extraordinary in a case that turns on the “arising out of” criterion for entitlement. Nor is there any consideration of the risk factors for the worker’s specific injury (which is hardly your typical knee injury). Is there any association between damage to the lateral collateral ligament and the forces applied to a knee when descending stairs? I don’t know—and neither will most people who read the decision, because the hearing panel don’t turn their minds to it, despite telling us that “the question which must be considered and determined is whether there was a work-injury process which caused or made a significant contribution to the injury.” It’s not unduly harsh to say that the Stairs decision skirts the boundary of the “justification, transparency and intelligibility within the decision-making process” required by Dunsmuir v. New Brunswick.
[ii] The Stairs hearing panel was apparently unaware of these cases, which take a rather different view of how s. 13(2) should be interpreted and applied.
This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.