Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:   Thermo Dynamics Ltd. v.  Nova Scotia (Workers’ Compensation Appeals Tribunal), 2005 NSCA 150

Date: 20051123

Docket:  CA 247203

Registry: Halifax

Between:

Thermo Dynamics Ltd.

Appellant

v.

Nova Scotia Workers’ Compensation Appeals Tribunal and

The Workers’ Compensation Board of Nova Scotia

Respondent

Judge:                   The Honourable Justice Jamie W. S. Saunders

Appeal Heard:      November 16, 2005

Subject:                 Interpretation and application of Sections 122, 190 and 240 of the Workers’ Compensation Act, S.N.S. 1994-1995, c. 10.  Standard of review.  Business classification.  Refund of over-assessment.  Statutory interpretation. Exercise of statutory discretion to correct an “injustice.”

Summary:             Suspecting that it had lost considerable money over the years after being assigned a faulty classification, the appellant sought redress from the WCB and the WCAT and a refund of whatever sums had been collected through improper over-assessments.

The appellant/employer appealed from the decision of the WCAT which upheld an earlier Board decision refusing to look back beyond January 1, 2002, on the basis that a refund of any monies collected following a reclassification was limited to the year preceding the year in which the “correction” was made.

Held:                    Appeal allowed and matter remitted to the Board for a rehearing whereby the effective date of the appellant’s reclassification and the refund of any monies due on account of improper over-assessments may be determined, having due regard to the Board’s broad statutory discretion. 

Although the Board and the WCAT were correct in their interpretation of s. 122(2), thereby limiting any refund for over-assessment, to the year preceding the year in which the correction was made; the WCAT erred in law in its interpretation and application of s. 190.  The WCAT found that in its (and therefore the Board’s) consideration of the matter, they were limited to a strict application of s. 122(2) without recourse or reference to any statutory discretion pursuant to s. 190.  This omission led to the tribunal’s erroneous conclusion that the Board was, in effect, precluded from even contemplating a calculation of the appellant’s over-assessment to a date earlier than January 1, 2002.  The WCAT considered s. 190 but declined to approve its application in this or any other case.

By enacting s. 190 the Legislature clearly intended to grant the Board a broad discretion to carefully examine the circumstances of each case to see whether an “injustice” has occurred warranting an extension of the time limits.  Here, it will be for the Board to consider whether the appellant’s request for a review sought initially in 1998, with yearly follow-ups, and the Board’s repeated failure to do anything about it until 2003, invites the application of s. 190, thus allowing for a retroactive refund to at least January 1, 1997.

A standard of correctness should be applied where the inquiry calls for the interpretation of statutory language that stipulates the preconditions for the exercise of the Board’s discretion.