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Workers’ compensation – Legislation – Interpretation – Administrative law – Judicial review – Standard of review – Maximum wage rate – Respondent Board adopting new policy whereby maximum wage rate for any gross earnings worker became subject to provision which had previously only applied to net earnings workers – Board denying applicant’s appeal of new policy – Whether administrative decision-maker or tribunal (protected by a privative clause) should be allowed to develop its own written policy that contradicts and overrules fundamental provisions within its own statute – The Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1, ss. 38, 38.1.

The applicant was injured at work on October 30, 1981. Since that time, he has been entitled to and has received earnings replacement benefits equal to 75% of his loss of earnings pursuant to s. 68(1) of The Workers' Compensation Act, 1979. The applicant’s annual benefits were consistently calculated on the basis of the maximum wage rate under s. 38 for over 25 years. The Act sets out two maximum wage rates for workers. The maximum wage rate for workers injured prior to September 1, 1985 ("gross earnings workers") is different from that for those injured after that date ("net earnings workers"). In 2007, the respondent Board adopted a new policy whereby the maximum wage rate for any gross earnings worker became subject to s. 38.1, which had previously only applied to net earnings workers. The effect of the new policy was to limit the maximum wage rate for all gross earnings workers to $55,000 and to put them on even footing with net earnings workers with respect to the amount of the maximum wage rate used in the loss of earnings calculation.

The Board denied the applicant’s appeal of the even-footing policy. The chambers judge who heard the applicant’s application for judicial review quashed the Board’s decision and remitted the matter to the Board to have his appeal re-adjudicated in accordance with the law, as set out by the chambers judge. The Court of Appeal allowed the Board’s appeal.