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WSIA - Employer Schedules. Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal
In Bell Technical Solutions Inc. v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2022) the Divisional Court considers the WSIA distinction between Schedule and Schedule 2 employers. These quotes are useful for getting a procedural sense of the distinction:[21] BTS asserts that the WSIAT’s decision that it could not be moved from Schedule 1 to Schedule 2 was unreasonable. I disagree. There is an intelligible, transparent and justifiable chain of reasoning that leads the WSIAT to its conclusion.
[22] First, the WSIAT instructed itself on the statutory provisions on this issue. For ease of reference, the relevant provisions state:74 (1) Upon application, the Board may declare an employer to be deemed to be a Schedule 1 employer or a Schedule 2 employer for the purposes of the insurance plan.
Exception
(2) A Schedule 1 employer is not eligible to be deemed to be a Schedule 2 employer under this section.
Same
(3) The declaration may be restricted to an industry or part of an industry or a department of work or service engaged in by the employer.
Same
(4) The Board may impose such conditions upon the declaration as it considers appropriate. [23] Section 74(2) contains wording that states that a Schedule 1 employer cannot be deemed to be a Schedule 2 employer. In this case, the WSIAT stated that the wording of that section was mandatory and found that this was sufficient grounds to deny BTS a transfer from Schedule 2 to Schedule 1. The WSIAT’s decision on this point is not unreasonable.
[24] However, the WSIAT went on to consider BTS’s argument that it had, at all material times, met the criteria for inclusion in Schedule 2. The WSIAT concluded that the request to “place” BTS in Schedule 2 was not permitted by section 74 of the WSIA. Counsel for BTS argues that this is circular reasoning, rendering the WSIAT’s decision unreasonable.
[25] The problem with the claim of circular reasoning is that the WSIAT went on to consider whether it was possible to retroactively establish BTS as a Schedule 2 employer when it originally registered with the WSIB in 1996. By considering this second argument, the WSIAT directly addressed the key underlying issue that had been raised by BTS and did so by looking beyond the wording of section 74.
[26] The WSIAT also rejected this argument for two reasons. First, the WSIAT concluded on the facts before it that BTS had requested that it be classified as a Schedule 1 employer when it originally registered with the WSIB. The WSIAT reviewed the file history before it and reasonably concluded that BTS’s predecessor had applied to the WSIB to be registered as a Schedule 1 employer in 1996. It was not until several years later that BTS challenged its inclusion in Schedule 1 and even then it withdrew that challenge.
[27] Counsel for BTS argues that there was no option given to BTS but to apply for Schedule 1 and that the form that BTS completed does not specifically say that it is an application for Schedule 1. The problem with this argument is twofold. First, the letter accompanying the application specifically requests that BTS be included in Rate Group 983, which is a Schedule 1 Rate Group. Second, Bell Canada was a Schedule 2 employer (which BTS would have known). I note that there was limited evidence on these points before the WSIAT. However, the evidence that the WSIAT had of the application, the accompanying letter and the subsequent appeals all provided grounds to anchor the WSIAT’s conclusion that BTS had applied and been registered as a Schedule 1 employer in 1996. Having originally applied as a Schedule 1 employer, it was reasonable for the WSIAT to conclude that BTS could not be retroactively registered as a Schedule 2 employer back to the date of its original registration.
[28] Second, the WSIAT considered the question of whether it was mandatory to place a federally regulated employer in Schedule 2. The WSIAT concluded, in light of previous Tribunal jurisprudence, that it was not mandatory. In particular, the WSIAT focused on Decision No. 613/90I, 1991 CanLII 5070. That decision concluded that the WSIB had a discretionary power to determine whether an employer fell within Schedule 1 or Schedule 2 of the WSIA.
[29] Counsel for BTS argued that Decision No. 613/90I stands for the proposition that a Schedule 1 employer may be moved to Schedule 2 and that, therefore, the WSIAT’s decision in this case is unreasonable. There are three significant problems with this submission. First, this decision was a “right to sue” application brought under different provisions of the legislation. Second, the decision was under the Workmen’s Compensation Act, which was an older statute. Finally, counsel was not able to identify a single decision in which the WSIAT had actually moved an employer who had originally been registered in Schedule 1 to Schedule 2.
[30] Counsel for BTS also pointed to the decision in Wright v. Bradley Air Services Inc., Decision No. 661/98. Counsel argues that this was another example of a case where the WSIAT had determined that it was possible for an employer to be transferred from Schedule 1 to Schedule 2. Again, however, this decision is a “right to sue” case and there was no actual transfer of an employer from Schedule 1 to Schedule 2. Indeed, in Wright, the employer was not requesting the transfer.
[31] Neither of these decisions assists BTS’s argument. In fact, the Wright decision specifically quotes sections of WSIB policy that preclude the transfer of a Schedule 1 employer into Schedule 2.
[32] The WSIAT also recognized the potential for businesses to fall partly within both Schedules. In the decision at bar, the WSIAT stated (at para 68):We conclude that, as was the case in Decision No. 613/90I, circumstances may arise where there is potential for an employer to fall within either Schedule 1 and Schedule 2. We note that “Construction, installation or maintenance of telephone or telegraph lines and works as a business” is a description of a Schedule 1 industry, included in Class H of Schedule 1, and it is apparent that the fact that an employer’s business activity which is associated with the installation of wiring to be used in connection with telephones is not by itself determinative that the employer must fall within Schedule 2. [33] The WSIAT went on to say that there were three reasons why, in this case, the WSIB’s original decision to place BTS in Schedule 1 was not unreasonable. The WSIAT considered the evidence surrounding BTS’s original registration in Schedule 1, the fact that Schedule 1 was a “good fit” and the fact that it was not practical to retroactively place BTS into Schedule 2. Each of these conclusions was reasonable. The first two have been extensively dealt with earlier in these reasons, so I will not address them further here.
[34] On the final issue, BTS makes the point that there was no evidence before the WSIAT to support the final conclusion that reclassification into Schedule 2 was impractical. I am not persuaded that evidence was necessary to support this conclusion. The WSIAT is an expert tribunal that is well-versed in the intricacies of the insurance scheme that it interprets. The differences between Schedule 1 and Schedule 2 are significant and it is not unreasonable for the WSIAT to have inferred that it was impractical to void all of the premiums paid since 1996 and then calculate the individual liability paid by the WSIB on behalf of BTS. It is an inference that flows naturally from the structure of the WSIA.
[35] Counsel for BTS argues that, if we grant the Application, the question of remedy should be remitted to the WSIB. However, that argument misses the point made by the WSIAT in paragraph 73 of their reasons that, for the argument that BTS is making to succeed, they must be placed into Schedule 2 ab initio.
[36] I also note that section 12 of O.Reg. 175/98 makes it clear that activities that are partly within Schedule 1 and partly outside of it are covered by Schedule 1. This is further support for the view that Schedule 1 is the default provision for registering businesses and that Schedule 2 is the exception.
[37] For all of these reasons, I conclude that the WSIAT’s decision to refuse to place BTS in Schedule 2 was reasonable.
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