An employer (“Simms”) was unsuccessful in appealing the determination of the Workplace Health, Safety and Compensation Commission Appeals Tribunal (the “Appeals Tribunal”) that the Workplace Health, Safety and Compensation Commission (the “Commission”) had not set its rates higher than the rate authorized by the Commission’s own policy at the time

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Assessment rates to employers – Policies – Judicial review – Standard of review – Correctness

T. S. Simms & Co. v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2004] N.B.J. No. 469, New Brunswick Court of Appeal, December 9, 2004, Drapeau C.J.N.B., Ryan and Richard JJ. A.

The Commission’s principal source of revenue is the assessments charged to employers. The question on appeal was whether the Appeals Tribunal committed a reversible error in rejecting the contention of Simms that the Commission set its 1996 assessment rates at a level greater than that authorized by the Commission’s own policy. In 1996, the Commission considered a policy that capped any increase in assessment rates at 20%. However, the Appeals Tribunal found as a fact that the 20% cap on increases found in the Policy 23-600 was not intended to apply to the assessments in 1996. The Court of Appeal agreed with this finding, noting that any other outcome would have been completely at odds with the evidence.

The Court of Appeal also considered the question of whether the pertinent policies and resolutions adopted by the Board had the effect of producing an unintended regime that capped rate increases at 20% for 1996. The Court defined this question as the legal effect of the Commission’s resolutions and policies. Because Simms had a statutory right of appeal, the standard of review on this question of law was correctness.

The Court of Appeal held that the Appeals Tribunal correctly resolved this question of law by finding that when the Board set the 1996 assessment rates, it made no mention of a 20% maximum cap. In addition, when the Board considered approving the Policy containing the maximum 20% cap, the Memorandum of consideration was for the 1997 year, despite the discussion of the Memorandum taking place in 1996.

The appeal was dismissed.

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