Between Joe Rodrigues, Applicant (Respondent), and Workplace Safety and Insurance Appeals Tribunal, Respondent (Appellant) [2008] O.J. No.

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1 Page 1 Case Name: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) Between Joe Rodrigues, Applicant (Respondent), and Workplace Safety and Insurance Appeals Tribunal, Respondent (Appellant) [2008] O.J. No ONCA D.L.R. (4th) O.A.C A.C.W.S. (3d) O.R. (3d) 757 Docket: C48383 Ontario Court of Appeal Toronto, Ontario M. Rosenberg, S. Borins and E.E. Gillese JJ.A. Heard: September 11, Judgment: October 21, (68 paras.) Workplace health, safety and compensation law -- Workers' compensation -- Benefits -- Payment of benefits -- Income benefits -- Legislation -- Interpretation -- Jurisdiction -- Ontario -- Appeals ad judicial review -- Deference to expertise of decision maker -- Boards and tribunals -- Evidence -- Appeal by Workplace Safety and Insurance Appeals Tribunal from a decision setting its decision aside -- Appeal allowed -- Tribunal applied Board policy in concluding that the claimant's pre-accident earnings did not include employer contributions to his benefit plan -- Court erred in setting aside Tribunal's decision based on its failure to consider legislative history, which was admissible evidence but irrelevant -- Tribunal's decision found reasonable -- Tribunal bound to apply Board policy -- Workplace Safety and Compensation Act, 1997, ss. 2, 126. Appeal by the Workplace Safety and Insurance Appeals Tribunal from a court decision setting aside a

2 Page 2 decision by the Tribunal in Rodrigues' case. The Tribunal had concluded that the contributions Rodrigues' employer had made to his benefit plan were not earnings for the purpose of calculating his pre-accident earnings, which figure would determine his income loss benefits entitlement. The reviewing court quashed the decision, finding that the Tribunal erred in law in failing to consider the legislative history of the definition of earnings in relation to compensation claims. This was the first time a court had interfered with a Tribunal decision concerning an employee's pre-accident earnings. HELD: Appeal allowed. The reviewing court's decision was quashed. The reviewing court erred in focusing on the Tribunal's failure to consider the legislative history in light of the reviewing court's finding the decision itself was reasonable. While evidence of the legislative history was admissible, it was irrelevant. The Tribunal was bound to apply a policy regarding calculating earnings that did not include employer contributions to benefit plans. Statutes, Regulations and Rules Cited: Workers' Compensation Act, R.S.O. 1990, c. W.11 Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 2, s. 2(1), s. 5, s. 25, s. 25(4), s. 53, s. 123(4), s. 126(1), s. 126(4) Appeal From: On appeal from the order of the Divisional Court (Justice Sidney N. Lederman, Justice John R.R. Jennings and Justice Katherine E. Swinton dissenting) dated September 10, Counsel: David Stratas, Brad Elberg and Dan Revington for the appellant. Jerry Raso for the respondent. J.D. Belec for the intervenor Workplace Safety and Insurance Board. Reasons for judgment were delivered by S. Borins J.A., concurred in by M. Rosenberg J.A. Separate dissenting reasons were delivered by E.E. Gillese J.A. S. BORINS J.A.:-- I 1 This is an appeal by The Workplace Safety and Insurance Appeals Tribunal (the "Tribunal") from the decision of the Divisional Court (per Lederman J., Jennings J. concurring, Swinton J. dissenting). The Tribunal decided that contributions to the respondent Mr. Rodrigues' benefit plan were not "earnings" as defined in s. 2 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 ("WSIA"), and were, therefore, excluded from the calculation of the respondent's loss of earnings benefits. The Divisional Court quashed the Tribunal's decision and remitted the matter back to it. A majority of the Divisional Court held that the Tribunal had committed an error of law rendering its decision patently unreasonable because it failed to refer to the legislative history of amendments to the definition of earnings in the section of the former Workers' Compensation Act, R.S.O. 1990, c. W. 11 that is now s. 2 of the WSIA. 2 The issue in this appeal is whether the majority of the Divisional Court erred in holding that the Tribunal's failure to expressly consider evidence of legislative history constituted "legal error" depriving the Tribunal's decision of deference. As I will explain, the majority of the Divisional Court erred and the dissenting reasons

3 Page 3 of Swinton J. are correct. 3 The respondent worker suffered an injury as a result of an accident that occurred while he was working at Highgate Metal Erectors Ltd. The respondent applied to the Workplace Safety and Insurance Board ("Board") for benefits, which are calculated in relation to a worker's earnings. After he was awarded certain benefits by the Board, the respondent appealed to the Tribunal. 4 The issue in dispute before the Board, and later the Tribunal, concerned the size of "loss of earnings" benefits to be given to the worker. The respondent worker was entitled to a percentage of his pre-accident earnings. The greater the earnings, the greater the benefits. The question was whether the worker's employer's contributions to his health, welfare and pension employment benefits should be included when calculating the worker's pre-accident earnings. The respondent contended that the contributions were earnings under s. 2 of the WSIA. The Board and the Tribunal disagreed. 5 The Board was the first body to consider the issue in dispute. The WSIA requires that the Board calculate a worker's pre-accident earnings for the purposes of determining loss of earnings claims. This requires that the Board determine, inter alia, whether an employer's contributions to a worker's health, welfare and pension employment benefits should be included when calculating the worker's pre-accident earnings. 6 Section 2(1) of the Act defines "earnings" as follows: Sections 126(1) of the Act reads: II III "earnings" or "wages" include any remuneration capable of being estimated in terms of money but does not include contributions made under section 25 for employment benefits. If there is an applicable Board policy with respect to the subject matter of an appeal, the Appeals Tribunal shall apply it when making its decision. [Emphasis added]. Section 126(4) provides that if the Tribunal concludes that a Board policy is inconsistent with, or not authorized by the Act, it shall not make a decision until it refers the policy to the Board for review and the Board issues a direction. 7 In this case, the Board has published a written policy concerning the meaning of "earnings" for the purpose of a determination of "average earnings" under s. 53 of the Act, which requires the Board to determine the amount of a worker's average earnings for the purposes of the insurance plan. The policy, which is Operational Policy 4.1, includes a comprehensive list of the kind of employer contributions to be included as employee "earnings". The comprehensive list does not include the employer's contribution to the worker's health, welfare and pension benefits. The respondent did not challenge the Operational Policy before the Tribunal, the Divisional court or this court. 8 The first administrative decision was made by a Board Claims Adjudicator. He ruled that the Board provide the respondent with partial loss of earnings benefits, and calculated the worker's pre-accident gross earnings as $ per week. The respondent, who was represented by a union representative, asked the Claims Adjudicator to recalculate his pre-accident earnings to include the employer's contributions to his health, welfare and pension benefits. The Claims Adjudicator said the contributions were not to be included when calculating pre-accident earnings. The worker appealed this decision to the Board's Appeals Resolution Office. 9 A Board Appeal Resolution Officer denied the worker's appeal. The officer considered the submission of the worker's union representative, the Act and the Board's operational policies. The officer decided that "the

4 Page 4 applicable legislation and policy is [sic] clear" and that "contributions for employment benefits are excluded" from the calculation of pre-accident net average earnings. Mr. Rodrigues appealed this decision to the Tribunal. IV 10 The Tribunal is the final appellate forum in matters of workplace safety and insurance in Ontario. Its decisions are subject to a strongly worded privative clause in ss. 5 and 123(4) of the Act. As a tribunal is quite different from a court, tribunal members play a role more active than a judge, and frequently apply their own expertise in deciding issues before the Tribunal. The Tribunal releases thousands of decisions each year concerning employees' pre-accident earnings. 11 As I have indicated, s. 126(1) of the Act requires that if there is an applicable Board policy with respect to the subject of an appeal, the Board is bound to apply the policy when making its decision. Thus, the Tribunal had no choice but to apply the Board's Operational Policy 4.1 to this case. It makes no reference to an employer's contributions to a worker's health, welfare and pension benefits as being included in "earnings". 12 An experienced Tribunal Vice-Chair decided this case in a careful and comprehensive manner. Her thorough reasons required 151 paragraphs. When the Tribunal became concerned that it did not have enough factual information to decide the issue, if requested additional evidence or submissions from several sources. The Tribunal reached its decision by considering the worker's evidence and submissions, all of the evidence in the record, including the Board's claim file, and the addition submissions and evidence that it had requested. 13 The Tribunal also reviewed the Act in the course of its reasons. It noted that s. 126(1) of the Act required that it apply the Board's Operational Policy 4.1. It concluded that the employment benefits pension plan contributions made by the employer was not in a list set out in Operational Policy 4.1 of matters considered to be "earnings". Therefore, in accordance with s. 126(1), as it was legally obligated to do, the Tribunal applied Operational Policy 4.1 and held that the employer's contributions were not "earnings" under s. 2(1) of the Act. 14 In my view, this would have been a sufficient rational basis for the Tribunal to find that employer's contributions should not be included in the worker's "earnings". However, the Tribunal went further and provided five additional rational bases for its decision: (1) The Tribunal noted the existence of prior Tribunal decisions on virtually identical facts that had found that employers' contributions to the same plans were not "earnings" under s. 2 of the Act. (2) The employer's payments were not made to the worker in lieu of benefits. (3) The employer's payments were not direct payments to the worker. (4) The list of matters considered earnings in Operational Policy 4.1 were all taxable, while the contributions made by the employer were not taxable. (5) As a matter of policy, the Tribunal stated that the inclusion of such employer contributions as earnings would have a significant impact on the overall workplace safety and insurance system. 15 The majority reasons of the Divisional Court begin with the recognition that the issue before the Tribunal was whether the respondent's pre-injury earnings should be calculated to include his employer's contributions to the health and welfare plan and the pension plan of his union. After reviewing the background facts, at para. 8 Lederman J. correctly stated the applicable standard of review: V Given the applicable standard of review of the decision of the Vice-Chair of the WSIAT, which all parties agree upon as being one of patent unreasonableness, the sole question is whether or not the WSIAT's decision that these contributions should not be

5 Page 5 included in the applicant's pre-accident earnings was so irrational as to be patently unreasonable. 16 Although the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 collapsed the patent unreasonableness and simpliciter standard of review into a single form of an unreasonableness standard, the Supreme Court appears to say that it is not necessary to engage in a fresh standard of review analysis in decisions made before Dunsmuir. This would mean that the standard of review in this case would remain patent unreasonableness. However, without reference to whether the "old" or the "new" standard of review should apply, in four post-dunsmuir decisions, this court has accepted the Dunsmuir unreasonableness standard and did not analyze the case on the basis of the pre-dunsmuir standard of review: Canadian General-Tower Ltd. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union Local 862 (2008), 238 O.A.C. 50; Flora v. Ontario (Health Insurance Plan, General Manager) (2008), 238 O.A.C. 319; Mulligan v. Laurentian University, [2008] O.J. No. 2570; Mills v. Ontario (Workplace Safety & Insurance Appeals Tribunal) (2008), 237 O.A.C. 71. Whether the standard of review is patent unreasonableness or unreasonableness, existing jurisprudence shows that reviewing courts can interfere only where in the ease of patent unreasonableness where the Tribunal's decision is "clearly irrational", and in the case of unreasonableness where the decision does not fall within a range of possible, acceptable outcomes. To interfere, the reviewing court must find that there are no lines of reasoning supporting the decision that could have reasonably led the tribunal to reach the decision that it did. 17 The majority of the Divisional Court then considered the reasons of the Tribunal, noting that the Tribunal stated that it was required to apply Operational Policy 4.1. It then extensively reviewed the legislative history of the relevant legislation. 18 The majority stated that the legislative history was in evidence before the Tribunal, but no consideration was given to it by the Vice-Chair in her reasons or analysis. In paras. 29, 30 and 31, the majority concluded: What is striking in this case is the total failure by either the WSIB or the WSIAT to take the legislative history and the government's explanatory purpose into account in any way. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and the nature of the legislature's intention. She specifically found that it could not have been the legislature's intention to turn the employment contributions into non-taxable pre-accident earnings or intended the result of the legislation to be that workers would receive non-taxable earnings. Having considered a multitude of factors with respect to legislative purpose and intention, she also should have weighed the evidence of the government's explanatory purpose which on its face makes it clear that the definition of earnings would not exclude the contribution for employment benefits at issue in this case. That is not to say that had the legislative history and purpose been considered, the Vice-Chair might not have found it determinative and given it less weight in comparison to the other factors that she did consider. She erred in ignoring the stated purpose altogether, particularly since it plainly suggests an interpretation opposite to the conclusion at which she arrived. The failure to consider it, as it was evidence before her, and to assess its overall weight in the context of the factual and legal matrix is a legal error which deprives the decision of deference. Accordingly, in these circumstance, I must conclude that the failure to consider relevant evidence that might have had a significant impact on the Vice-Chair's findings renders her decision patently unreasonable. Therefore, the decision of the Vice-Chair of the WSIAT is set aside and the matter is remitted back for a re-hearing in accordance with these reasons.

6 Page 6 19 In her dissenting reasons, Swinton J. would have upheld the Tribunal's decision on the ground that it was rationally supportable. In my view, she is correct. She noted that "the Tribunal's task was to determine the meaning of earnings' in light of the language used in the Act and policy considerations, as well as evidence about the nature of the actual benefit payments", which it discharged by undertaking "extensive investigation to obtain relevant evidence on earnings" and by making "a decision that is squarely within the Tribunal's specialized expertise" and "consistent with an earlier case with similar facts". 20 As for legislative history, Swinton J, found that the Tribunal's failure to refer to evidence of legislative history did not deprive the Tribunal of being accorded deference, or render its decision patently unreasonable. Moreover, legislative history was not the focus of the argument before the Tribunal. She referred to Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 35 for the proposition that evidence of legislative history only plays a limited role in statutory interpretation. In any event, it is not fatal to a Tribunal's decision that specific mention is not made of certain evidence: Trotta v. College of Nurse of Ontario, [1991] O.J. No. 348 (Div. Ct.). VI 21 In my view, the majority erred in granting judicial review on the ground that the Vice-Chair committed a "legal error" in failing to consider the legislative history of the legislation, thereby rendering her decision patently unreasonable. This was despite, as Swinton J. emphasized in her dissenting reasons, the presence of substantial reasoning set out in the Tribunal's decision that reasonably led it to make the decision it made. As well, it should be noted that the majority did not disagree with the Tribunal's reasoning, or suggest that the Tribunal could not reach the decision that it reached based on that reasoning. Nor did it indicate why it thought that the Tribunal should have considered evidence of legislative history. 22 It would appear that no court has ever interfered with any of the thousands of decisions of the Tribunal concerning an employee's pre-accident earnings. This is no doubt due to the substantial degree of deference accorded to the Tribunal based on the Legislature's decision to create the Board and the Tribunal, to vest in the Board the exclusive authority to calculate a worker's pre-accident earnings, to delegate to the Tribunal the exclusive authority to review matters of workplace safety and insurance, 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. The privative clause is most important as it evidences a legislature's intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized: Dunsmuir at paras. 45 and 48. Thus, reviewing courts can interfere only where the Tribunal's decision is clearly irrational. 23 In its decision, the majority focused on the Tribunal's failure to consider evidence of the legislative history of pre-accident earnings. This was despite the fact that it recognized that the standard of review was patent unreasonableness and the fact that it found nothing that was irrational about the Board's decision. The majority immersed itself in the Tribunal's fact-finding process by reweighing and attributing more weight to the evidence of legislative intent than the expert Tribunal felt appropriate. In doing so, it erred. The only issue was whether the Board's decision was patently unreasonable. 24 In its analysis, the majority failed to take into account that the evidence of legislative history, while admissible, was irrelevant. Under s. 126(1) of the Act, the Tribunal was bound to apply Operational Policy 4.1. That policy as interpreted by the tribunal, did not include employer payments for benefit plans or pension plans in "earnings". VII 25 For the foregoing reasons, the majority erred in finding that the Tribunal's failure to consider evidence of legislative history was a legal error rendering its decision patently unreasonable. The Tribunal considered the proper evidence, applied Operational Policy 4.1 and found that the employer's contributions to the respondent worker's health, welfare and employment benefits should not be included when calculating his pre-accident earnings. It had sufficient evidence to support this conclusion, which was clearly rational. It passes muster under the deference standard of patently unreasonable or reasonableness.

7 Page 7 26 I would allow the appeal and quash the decision of the Divisional Court. The Tribunal does not seek costs. I would not allow costs to the intervenor. S. BORINS J.A. M. ROSENBERG J.A.:-- I agree. 27 E.E. GILLESE J.A.:-- I have had the opportunity to read the draft reasons of my colleague, Borins J.A. With respect, I disagree. In my view, there is no basis on which to interfere with the majority decision of the Divisional Court (the "majority decision") and I would dismiss the appeal. 28 As will become apparent, the background plays a significant role in my view of the appeal, thus I begin there. BACKGROUND The Events Leading up to the Tribunal Hearing 29 Mr. Rodrigues was a roofer and a member of the Sheet Metal Workers' International Association, Local No. 30. His employers paid him according to the terms and conditions of the wage schedule of the collective agreement. For every hour that Mr. Rodrigues worked, and only for those hours, he received a total wage package, comprised of: (a) (b) (c) (d) an hourly rate of $ per hour, vacation pay at 10% of the hourly rate, contributions to the health and welfare plan calculated at an hourly rate of $2.638 per hour, and contributions to the pension plan calculated at an hourly rate of $2.79 per hour. 30 The contributions made on his behalf to the health and welfare plan and to the pension plan (the "Plans") were identical to the hourly wage and vacation pay in that they were all part of the same wage package, earned for the same hours of work, and paid only for hours worked. 31 While at work on March 11, 1998, Mr. Rodrigues suffered a serious back injury. He has been unable to work since as a roofer and, based on the medical evidence, it is unlikely that he will ever be able to return to such work. 32 As he was unable to work because of the accident, Mr Rodrigues applied to the Workplace Safety and Insurance Board (the "Board") and was granted a Future Economic Loss benefits award. This award was calculated at 85% of the difference between entry level wages of $7 per hour and his pre-injury earnings. The Board calculated his pre-injury earnings based only on his hourly rate and vacation pay; it did not include the contributions made on his behalf to the Plans in its calculation. 33 However, in the year following the accident, Mr. Rodrigues received compensation for those contributions from the Plans. This occurred as a result of s. 25 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 ("WSIA") 1 which requires an employer, in certain circumstances, to continue its contributions to the worker's benefits for the first year after the worker is injured if the worker is unable to work because of the injury. However, s. 25(4) relieves employers who participate in multi-employer benefit plans from this obligation (i.e. to continue to make contributions in the year following the worker's injury), if the plans provide the worker with the benefits to which he or she would otherwise be entitled. 34 The Plans provided Mr. Rodrigues with the benefits as required by s. 25(4). On March 11, a year after the workplace accident - Mr. Rodrigues ceased to receive such benefits from the Plans. 35 Mr. Rodrigues applied to the Board to have the employer's contributions to the Plans included in the calculation of his earnings for the period commencing March 12, If the employer contributions to the Plans were included in the calculation, his pre-accident earnings would be higher, he could claim a larger wage loss because of the accident, and he would be entitled to higher compensation benefits.

8 Page 8 36 The claims adjudicator of the Board denied his claim. Mr. Rodrigues appealed that decision. An appeals resolution officer of the Board upheld the claims adjudicator's decision. 37 Mr. Rodrigues then appealed to the Workplace Safety and Insurance Appeals Tribunal (the "Tribunal"). The Tribunal Proceedings and Decision 38 Vice Chair Sutherland served as the Tribunal that heard Mr. Rodrigues's appeal. 39 She identified the issue for resolution on appeal as whether the employer's contributions ought to be included in Mr. Rodrigues's earnings basis "Earnings" is defined in s. 2(1) of the WSIA to: include any remuneration capable of being estimated in terms of money but does not include contributions made under section 25 for employment benefits. 41 On behalf of Mr. Rodrigues, the Union submitted that the employer contributions to the Plans fell within the definition of "earnings" in s. 2(1). In summary, it argued that: (1) the contributions were remuneration because they were part of Mr. Rodrigues's compensation package and paid only for hours worked for a particular employer, (2) the amounts were capable of being estimated in money terms as they were specified in dollar amounts, and (3) they were not excluded because they were not post-injury contributions made pursuant to s. 25 of the WSIA. 42 At the request of the Vice Chair, legal counsel to the Tribunal also made submissions on whether the employer's pre-accident contributions to the Plans on behalf of Mr. Rodrigues were properly included in the calculation of his earnings. Her submissions made extensive reference to the legislative history of the definition of earnings In addition, as an attachment to her submission, Tribunal counsel provided the Vice Chair with an excerpt from the Standing Committee on Resources Development, Workers' Compensation Amendment Act, 1989, dated June 19, This excerpt shows that only section 5(a) (now s. 25) contributions were meant to be excluded from the definition of earnings. The following is extracted from that excerpt. It is part of an exchange between Ms. Shelley Martel, member of the Standing Committee, and Mr. Richard Clarke, Manager, Policy Branch, Labour Policy and Programs, Ministry of Labour. Ms. Martel asked if employers' benefit contributions would be included in determining a worker's future loss of earnings. Mr. Clarke replied: In the amendments that were tabled by the Minister with the committee, you will see an amendment to do that. We made a mistake in drafting the bill in that the noninclusion of the employer costs of those benefits should have been only for the same period of time, the one year, that the employer was being obliged to maintain the benefits. There is an amendment in the amendments tabled by the Minister that will make it clear that at the end of the one year, when the employer is no longer obliged to maintain those benefits, his or her costs for that worker will then be included in the wage and salary calculation for the worker and thus will form part of the basis for determining the worker's loss of earning capacity. So they will be included at that point. 44 On my reading of her submissions, Tribunal counsel was of the view that the legislative history of the definition of earnings led to the conclusion that the contributions in question were to be included as earnings after the first year. 4 Tribunal counsel's submission on the legislative history concluded with the following: This statement, 5 and subsequent debates in the Standing Committee on Resources Development regarding this amendment to the amendments, suggest that the legislature's purpose in excluding s. 25 contributions from the definition of "earnings" was so that employers would not have to pay the contributions twice - once through

9 Page 9 payments into a plan, and then again through calculation in the worker's earnings basis. However, once the employer was no longer obliged to make the payments, there was an expectation that these contributions would again be included in the worker's earnings basis. In considering what weight should be placed on legislative history materials in interpreting legislation, relevant considerations include: the reliability of the materials; whether their meaning is clear; and whether they have been tainted by partisan politics or other distorting interests. [Emphasis added, footnotes omitted.] 45 With respect to the requirement in s. 2(1) that earnings are remuneration, Tribunal counsel submitted: [I]n appropriate circumstances contributions to employment benefits, as opposed to the benefits themselves, can be "remuneration". Support for this statement is found in the definition of "earnings" in the WSIA, which excludes only "contributions made under section 25 for employment benefits" from "earnings", thus suggesting that contributions for employment benefits other than those made under s. 25 would be included in this definition. 46 Tribunal counsel submitted that the employer's pre-injury contributions were not excluded from the worker's earnings by virtue of s. 25 and, thus, could be included as part of the worker's earnings basis. She concluded her submissions to that effect, again referencing the legislative history: Once the worker is no longer receiving the benefit of the employer contributions to employment benefits [from the Plans], can the value of these benefits again be included in the calculation of the worker's earnings basis? It is submitted that a plain reading of the definition of "earnings" in the WSIA suggests that they can, as these pre-accident contributions to employment would no longer be contributions made under s. 25. A review of the legislative history of the Bill 162 amendments to the statutory definition of "earnings" and "wages" also supports this interpretation. 47 Submissions to the Vice Chair by the Office of the Worker Adviser agreed with, and relied on, the legislative history provided by Tribunal counsel. The Office of the Worker Adviser quoted from the submissions of Tribunal counsel on the legislative history which showed that the legislature's purpose in excluding s. 25 contributions from the definition of earnings was so that employers would not have to pay the contributions twice and that there was an expectation that the employer contributions would be included in the worker's earnings basis The Office of the Worker Adviser submitted that the materials on legislative history were a reliable indicator of the intention of the legislature and that the legislative history confirmed the "clear" language of the statute On November 15, 2005, the Vice Chair issued her decision, 8 holding that hourly contributions to the Plans by the employer were not earnings. This conclusion was based on her view of the legislative intent behind the definition of earnings and the impact of the Board's Operational Policy 4.1. Many of the factors that she considered are identified in the reasons of my colleague so I will not repeat them except to note the Vice Chair's observation that if such contributions were included in Mr. Rodrigues's earnings, all Ontario workers with benefit packages would have the cost of those benefits included in their earnings basis. 9 THE LEGISLATIVE HISTORY 50 As has been mentioned, paras. 17 to 24 of the majority decision contain a very helpful summary of the legislative history of the word "earnings" in s. 2(1) of the WSIA. Those paragraphs are set out now. [17] Prior to 1990, the definition of "earnings" and "wages" was broad and included any remuneration capable of being estimated in terms of money without reference to

10 Page 10 contributions for employment benefits: Workmens' Compensation Act R.S.O. 1980, c. 539, s. 1(1)(i). [18] In 1984, the Workmens' Compensation Act was amended by S.O. 1984, c. 58, s. 44(1). At that time, the notion of "net average earnings" was introduced and the Board was then required to deduct the probable Canada Pension Plan (CPP) and Employment Insurance (EI) premiums payable by the worker as well as the probable amount of income tax from his or her earnings. [19] In 1990, the Workmens' Compensation Act was amended again by the Workers' Compensation Amendment Act S.O. 1989, c. 47, otherwise known as Bill 162. [20] In its First Reading, Bill 162 included s. 1(2) which amended the definition of "earnings". It contained the phrase, "but does not include contributions for employment benefits". Therefore, the proposed amendment at First Reading would exclude all contributions for employment benefits. [21] This was not the final version of the Bill that passed, however. Section 1(2) of Bill 162 was then itself amended at Second Reading in May 1989 with the phrase, "but does not include contributions made under section 5(a) for employment benefits". [22] The amendment was accompanied by the following statement by the government. It explained that the exclusion was intended to be restricted to contributions made under s. 5(a) only, which is limited to one year, commencing from the date of the injury: Subsection 1(2) Purpose This amendment will correct an oversight in Bill 162. Under the current Act, employers are to report to the WCB their costs of any calculable benefits extended to the worker. Since Bill 162 extends the actual benefit protection to the worker for certain benefits, the employer was relieved from the obligation to include them in the wage or salary calculation. Thus the employer would not have to bear the cost twice. But what the Bill does as drafted is delete the obligation to report those costs even after the obligation to continue the benefit protection expires. This amendment will correct that oversight by restricting the exclusion for the costs of those benefits just to the required period of benefit maintenance. For example if the injured worker remains on temporary compensation for 18 months, then during the first 12 months, the employer will not include as part of the worker's wages or salary reported to the WCB the employer's costs associated with those benefits being maintained as a result of Bill 162. But, during the last 6 months the employer would report the value of the employer's costs for those benefits which he had previously maintained for the injured worker. These would then be reflected in the temporary compensation paid to injured worker.

11 Page 11 [23] Section 5a was the clause in the Act that required employers or multi-employer benefit plans to maintain the contributions that had been made by the employer prior to the injury, for one year from the date of the injury. The exclusion of s. 5(a) contributions in the definition of earnings, according to applicant's counsel, was meant to avoid an employer from paying twice - once by the employer under s. 5(a) and secondly, by having the same contributions included in the earnings basis. [24] Section 5(a) is the present s. 25 of the Act which reads, in part, as follows: Employment Benefits 25.(1) Throughout the first year after a worker is injured, the employer shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury. However, the contributions are required only if, (a) (b) the employer was making contributions for employ-ment benefits in respect of the worker when the injury occurred; and the worker continues to pay his or her contributions, if any, for the employment benefits while the worker is absent from work. 1997, c. 16, Sched. A, s. 25(1).... Multi-employer benefit plans Definition (4) Subsection (1) does not apply to an employer who participates in a multi-employer benefit plan in respect of the worker if, when the worker is absent from work because of the injury during the first year after it occurs, (a) the plan continues to provide the worker with the benefits to which he or she would otherwise be entitled; and (b) the plan does not require the employer to make contributions during the worker's absence and does not require the worker to draw upon his or her benefit credits, if any, under the plan during the absence. 1997, c. 16, Sched. A, s. 25(4). (7) In this section,... THE STANDARD OF REVIEW "contributions for employment benefits" means amounts paid in whole or in part by an employer on behalf of a worker or the worker's spouse, child or dependant for health care, life insurance and pension benefits. 1997, c. 16, Sched. A, s. 25(7); 1999, c. 6, s. 67(5); 2005, c. 5, s. 73(5). 51 The standard of review to be applied in reviewing the Tribunal decision has never been in issue in these proceedings. At the time this matter was heard by the Divisional Court, the parties were agreed and all members of the court accepted that the applicable standard was patent unreasonableness.

12 Page By the time of this appeal, the Supreme Court of Canada had rendered its decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, in which it abolished the standard of patent unreasonableness. Under Dunsmuir, the reasonableness simpliciter and patent unreasonableness standards of review have been collapsed into a single standard of reasonableness. Again, however, the parties are agreed, as is the panel, that although the standard of review is now reasonableness, the degree of deference to be afforded the Tribunal decision remains the same. ANALYSIS 53 My colleague would allow the appeal because, in his view, the majority decision is based on the ground that the Vice Chair committed a legal error in failing to consider the legislative history of the definition of earnings in the WSIA. With respect, I do not read the majority decision in the same way. 54 The legal error identified in the majority decision was not the failure to consider the legislative history. Rather, it was the failure of the Vice Chair to consider relevant evidence that: (1) had been adduced and relied on by the parties, (2) went to the very issue she was required to decide, and (3) might have had a significant impact on her findings. This is clear from paras. 26, 29 and 30 of the majority decision. Those paragraphs read as follows: [26] The legislative history and the government's explanatory purpose of the amendment were put before the Vice-Chair, as evidence, but no consideration is given to it in her reasons or analysis.... [29] What is striking in this case is the total failure by either the WSIB or the WSIAT to take the legislative history and the government's explanatory purpose into account in any way. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and the nature of the legislature's intention. She specifically found that it could not have been the legislature's intention to turn the employment contributions into non-taxable pre-accident earnings or intended the result of the legislation to be that workers would receive non-taxable earnings. Having considered a multitude of factors with respect to legislative purpose and intention, she also should have weighed the evidence of the government's explanatory purpose which on its face makes it clear that the definition of earnings would not exclude the contribution for employment benefits at issue in this case. That is not to say that had the legislative history and purpose been considered, the Vice-Chair might not have found it determinative and given it less weight in comparison to the other factors that she did consider. She erred in ignoring the stated purpose altogether, particularly since it plainly suggests an interpretation opposite to the conclusion at which she arrived. The failure to consider it, as it was evidence before her, and to assess its overall weight in the context of the factual and legal matrix is a legal error which deprives the decision of deference. [30] Accordingly, in these circumstances, I must conclude that the failure to consider relevant evidence that might have had a significant impact on the Vice-Chair's findings renders her decision patently unreasonable. 55 The background facts set out above make clear that the majority decision is correct. The legislative history had been urged on the Vice Chair as a highly relevant consideration. That history was relied on by the parties and was relevant to her determination. The issue for the Vice Chair was the meaning of "earnings" in s. 2(1) of the Act and, as the Vice Chair explicitly and repeatedly recognized, the legislature's intention was a critical aspect of deciding that matter. As I discuss below, the legislative history was clearly relevant to the legislature's intention.

13 Page By failing to so much as advert to important evidence relevant to the central issue, the Vice Chair erred in a manner which deprived her decision of deference - but not because it is a legal requirement that the legislative history of a provision be considered whenever an issue of interpretation of the provision arises. Neither the majority decision nor I suggest that it is a requirement in law that the legislative history of a provision always be considered. The use of legislative history as a tool for determining the intention of the legislature is appropriate and often employed by the Supreme Court of Canada and this court. 10 However, as noted in the majority decision, care must be taken to assess its relevance and reliability and not to place undue weight upon it By completely failing to advert to the evidence in question, neither the parties nor the reviewing court can know whether the Vice Chair took it into account. It is trite law that tribunal decisions must be based on a consideration of all relevant factors and evidence. An unbroken line of cases from the Supreme Court of Canada makes clear that a failure to consider all relevant factors in the exercise of discretion deprives the decision of deference. The following excerpts demonstrate this. 58 In Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, at p. 389, Dickson J., writing on behalf of the court, stated: A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. [Emphasis added.] 59 In Oakwood Development Ltd. v. St. Francois Xavier (Rural Municipality), [1985] 2 S.C.R. 164, at pp , Wilson J., writing on behalf of the court, stated: [T]he failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration.... [An administrative tribunal] must be seen not only to have restricted its gaze to factors within its statutory mandate but must also be seen to have turned its mind to all the factors relevant to the proper fulfilment of its statutory decision-making function. [Emphasis added.] 60 In Canada (Director of Investigations and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J., writing for the court, held that a tribunal had not failed to consider all relevant items of evidence and, therefore, had not erred in law. 12 As a matter of law, the tribunal should consider each item and factor but the weight to be accorded to them should be left to the tribunal In Suresh v. Canada (Minister for Citizenship and Immigration), [2002] 1 S.C.R. 3, at para. 41, the Supreme Court wrote: If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable - unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures - it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution. [Emphasis added.]. 62 In Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2

14 Page 14 S.C.R. 157, at para. 60, Iacobucci J., writing for the majority, wrote: In reviewing a decision on a standard of patent unreasonableness, the reviewing court must consider the decision-making process in its entirety, including the failure of the tribunal to consider all of the relevant factors and legal principles. This reflects the fact that a decision will be patently unreasonable if the tribunal reaches a particular conclusion on account of its failure to take into account legal principles or statutory provisions that clearly are relevant to the issue that must be resolved. [Emphasis added, citations omitted.] 63 The obligation of the reviewing court to ensure that a tribunal considered all relevant matters in reaching its decision is so well-established that the Supreme Court most recently in Dunsmuir at para. 141 described it as part of the "usual" issues to be watched for: The danger of labelling the most "deferential" standard as "reasonableness" is that it may be taken (wrongly) as an invitation to reviewing judges not simply to identify the usual issues, such as whether irrelevant matters were taken into consideration, or relevant matters were not taken into consideration, The majority decision does not amount to a reweighing of the evidence before the Vice Chair. Quite the contrary. It undertook no weighing of the evidence. Instead, it remitted the matter so that a determination could be made in accordance with the foundational principles of administrative law, namely that the decision maker consider all relevant evidence and factors. In remitting the matter, the majority decision expressly recognized that the Tribunal was not bound by the legislative history and that the history was not determinative. It left a weighing of all of the relevant factors and evidence to the Tribunal - an attitude of deference which the courts properly owe the Tribunal. 65 Both the jurisprudence and the submissions of the parties to the Vice Chair make it obvious that the legislative history of the meaning of earnings in s. 2(1) of the WSIA was relevant in the present case. I do not accept that Operational Policy 4.1 somehow made it irrelevant. Policy cannot "trump" legislation. A decision maker is bound to consider all significant evidence adduced by a party that goes to a material issue and, in any event, the Policy does not exclude such a consideration. The Policy lists many types of payments and then states whether that payment is included in, or excluded from, earnings. Here, the question was not whether a payment was to be included but whether contributions that would go to the payment of benefits under certain plans were to be treated as earnings. Moreover, although the Policy does not list these contributions as being included in earnings, it also does not list them as being excluded or not included; as my colleague notes, it simply makes no mention of such contributions. 66 Deference to a tribunal does not mean ignoring a failure by the tribunal to conform to the foundational principles that inform judicial review. Deference is founded on the notion that the decision maker has complied with the appropriate procedural and fairness considerations. Here, the court would be abdicating its supervisory role if it failed to set aside the decision because the Vice Chair failed to consider relevant evidence. As the matter stands, neither the parties nor the courts can know whether she considered the legislative history of "earnings" in s. 2(1). By failing to address a relevant matter, the Vice Chair has effectively foreclosed the opportunity for meaningful judicial review. It is that danger which is obviated when a court requires adherence to the basic principle that a decision maker must take into consideration all relevant evidence before coming to a determination. 67 The majority decision is correct. Where there is highly significant and relevant evidence that goes to the very matter a tribunal must decide, there must be some indication that the decision maker considered it. Rationality and reasonableness are not solely a matter of whether the result is supportable. Those notions also involve a consideration as to whether the tribunal has acted in accordance with the principles of fairness which the courts have laid down. It is neither reasonable nor rational to completely ignore the evidence in question, particularly where, as here, that evidence suggests an interpretation opposite to the one reached by the Vice Chair.

15 Page 15 DISPOSITION 68 Accordingly, I would dismiss the appeal. E.E. GILLESE J.A. cp/e/qlttm/qlprp/qlrxg/qlaxr/qlhcs/qlced 1 The relevant parts of s. 25 can be found below. 2 Whether the job of parking lot attendant was a suitable employment or business was also in issue before the Vice Chair. However, that matter was not before the Divisional Court nor is it called into question on this appeal. 3 The majority decision contains an excellent summary of the legislative history of earnings. That summary can be found in para. 50, below. 4 The Vice Chair was of the view that Tribunal counsel took no position on whether the contributions should be included in the earnings basis: see para. 71 of her decision. 5 She is referring to the written explanation of the amendment provided by the government. That explanation is set out in the legislative history, below. 6 Exhibit Book of the Workplace Safety and Insurance Appeals Tribunal, Volume III, at p Ibid. 8 Decision No. 855/03. 9 At para Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 31, 35; David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), at paras. 63, 90-91, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No At para. 28; Castillo v. Castillo, [2005] 3 S.C.R. 870, at para. 23, citing Reference re Firearms Act, [2000] 1 S.C.R. 783, at para At paras At para. 43.