Saturday, 13 June 2015

Are Workers, Locally Engaged by the Government of Canada, "Entitled" to Workers Compensation Benefits?

Are locally engaged employees of the Consulate General of Canada in Boston (i.e. those hired by the Canadian Government to work in the consulate, but who are not Canadian diplomats), who get injured in the course of employment, “entitled” to workers compensation benefits pursuant to the provisions of Canada’s Government Employees Compensation Act, RSC 1985, c G-5?

While that question may seem oddly specific, and it is, it is not only one of the questions that the Massachusetts Department of Industrial Actions was forced to answer in the case of Cynthia L. Merlini, it is the question on which I was summonsed to provide expert evidence.

On December 11, 2012, I testified as an expert witness in Ms. Merlini’s case. Following the hearing, the trial judge, Administrative Judge John G. Preston, found, on the basis of my testimony, that Ms. Merlini was not “entitled” to benefits from the Canadian Government as a locally engaged employee.

More recently, however, the Reviewing Board held that Ms. Merlini was entitled to benefits and for that reason, and for two other reasons specific to Massachusetts law, which will not be considered by this post, reversed the Order to grant Ms. Merlini benefits from the Massachusetts Workers Trust Fund.

For the reasons set out below, here is why I think the Reviewing Board got the “entitlement” question wrong.

Facts of the Case

Cynthia Merlini is an American citizen, residing in the state of Massachusetts. On January 22, 2009, she was employed by the Canadian Government as “locally engaged staff”, providing office clerical and administrative tasks at Canada’s consular office in Boston. She was not involved in the diplomatic/policy workings when she was injured. Rather, she was fulfilling one of her office tasks – serving coffee/tea at a business meeting being held at the Boston consulate suite.

As found by Administrative Judge Preston, Ms. Merlini sustained multiple injuries and received medical treatment for the injuries. For a brief period of time she received benefits from the Canadian government. Some time thereafter, and before Ms. Merlini was better, those limited benefits were unilaterally terminated by the Canadian government and her file was closed.

As I understand matters, under Massachusetts workers compensation law, provided that Ms. Merlini was not otherwise “entitled” to benefits either from her employer or in any other jurisdiction, she could receive benefits from the Massachusetts Workers' Compensation Trust Fund (“WCTF”), which operates essentially as a failsafe for those employees whose employers do not pay into the regular system.

When her benefits were summarily terminated by the Canadian government, Ms. Merlini turned to the Massachusetts workers compensation system. Because Canada did not pay into that regime, Ms. Merlini made a claim to the WCTF on the basis that she was not entitled to benefits from her employer.

One of the legal questions that the court had to answer was whether Ms. Merlini was correct in her assertion that she was not “entitled” to benefits in any other jurisdiction, i.e. Canada.


By way of judicial history, on June 28, 2011, Administrative Judge Preston found that Ms. Merlini was not entitled to benefits from her employer and was therefore entitled to a benefits from the WCTF; he ordered the WCTF to pay her.

However, on the first appeal to the Reviewing Board, (reasons for decision reported at:, the Reviewing Board overturned Administrative Judge Preston’s findings on the basis of a lack of proper evidence about Canadian law. The Reviewing Board directed that:

To establish the law of another jurisdiction, a party may direct a judge’s attention to the law of that jurisdiction by oral testimony of a qualified witness, such as an attorney, as well as by the citation of statutes and decisions.

So, Ms. Merlini called me. We spoke about my knowledge of the Government Employees Compensation Act, RSC 1985, c G-5 and how Canadian law works in general. Her attorney retained me to provide expert testimony, and as mentioned before, on December 11, 2012, I took a seat in the witness box.

In his reasons for decision again allowing Ms. Merlini’s claims for benefits from the WCTF, (unreported), Administrative Judge Preston wrote:

I credit Attorney Sean Bawden, a qualified legal opinion witness testifying on behalf of the Employee on the applicable law regarding the Employee’s workers’ compensation claim for benefits when he opines as follows:

  • That Ms. Merlini was never entitled to benefits, from the Canadian government because there is no entitlement since the benefits are discretionary for an LES employee.
  • That Ms. Merlini was never entitled to an evidentiary hearing on her receipt of the letter that her compensation claim was denied by Canadian authorities.
  • That Ms. Merlini had no ability to go before any tribunal of Canadian authorities offering due process of law for adjudication of the merits of her claim.
  • That Ms. Merlini had no rights by Canadian law to challenge the merits of the refusal to re-open her case, or pay her further workers compensation benefits, through any recognized appellate process at any time.
  • That Ms. Merlini as an LES Employee did not have due process in Canada as provided for her by the 14th amendment of the United States Constitution.
  • That Canadian law diverges when discussing LES [locally engaged staff] and [Canadian based staff] employees, and the CBS [Canadian based staff] employees have a specific formal appeal process including rights of appeal, but Ms. Merlini, an LES employee does not have such rights and protection.
  • That GECA section 4 states “… compensation shall be paid … to Canadian based staff (CBS); but under GECA section 7(2): the Minister may award compensation to an LES (like Ms. Merlini) … as he deems fit …”
  • That given the discretionary nature of Ms. Merlini’s entitlement to benefits as an LES employee, as contrasted to the rights of CBS employees to hearings and appeals, that under Chapter 152, sec. 65, Ms. Merlini was never entitled to benefits within the jurisdiction of Canada.
  • That a CBS employee, contrary to an LES employee like Ms. Merlini, has effective rights to appeal an adverse decision under GECA and present medical and oral evidence, medical reports, legal submissions at a hearing, and then to be furnished a formal decision.
  • That Ms. Merlini as an LES does not have the opportunity of access to present evidence before the Workplace Safety Insurance Board, under GECA, at a de novo hearing on receipt of her claim being denied.
  • That the discretionary manner by which benefits may be paid to LES employees does not meet the due process arguments of the 14th amendment.
  • That Ms. Merlini as an LES employee has no right of appeal to the WCIB or tribunal, to challenge the refusal to re-open her claim by the claim adjuster…

I adopt and take judicial notice of these portions of the dispositive legal opinion of Attorney Sean Bawden and the supporting Canadian law documents accepted in evidence in concluding Ms. Merlini’s only entitlement to workers compensation benefits is from the WCTF.

In her reason for decision overturning that decision, (reasons for decision reported at:, Administrative Law Judge Catherine Watson Koziol wrote the following on behalf of the Reviewing Board: order to receive benefits from the WCTF, pursuant to § 65(2)(e)(i), the employee cannot be “entitled to benefits in any other jurisdiction.” The WCTF asserts the employee’s claim fails to satisfy this requirement because she was paid workers’ compensation benefits pursuant to Canada’s Government Employees Compensation Act (GECA).

There is no dispute the employee received weekly incapacity and medical benefits from the Canadian government after she was injured. The employee argues, however, that receipt of benefits alone does not end the inquiry, because benefits differ between locally engaged staff (LES), such as herself, and Canadian based staff (CBS). She further asserts that LES employees do not have the right to appeal from Canada’s unilateral decision to discontinue benefits. Based on the testimony of Canadian attorney Sean Bawden, and GECA § 7(2), the judge found that the employee was not “entitled to benefits in another jurisdiction,” therefore satisfying the requirements of § 65(2)(e)(i). The judge found that because the employee’s entitlement to benefits was discretionary in nature and because, as an LES employee, she never had a valid due process right of appeal, she was never “entitled” to benefits, within the meaning of § 65(2)(e)(i), in the jurisdiction of Canada.

As a threshold matter, we note that no claim was ever advanced that the employer bore no legal responsibility for the employee’s work-related injuries. With that in mind, we observe that § 7 of GECA, by its own unambiguous language, addresses only how compensation for LES workers is paid, not whether there is an entitlement to benefits. Moreover, contrary to the judge’s findings, the employee was provided the right to appeal the decision to terminate her compensation. (Ex. 2A & 2B.) The employee testified that she had been advised of this right. The employee also admitted that after the denial of her request for reconsideration and reinstatement of benefits, she did not file an appeal. The employee cannot assert a due process violation because of her failure to file a timely appeal.

The fact that a compensation system for injured foreign employees was in place and the employee actually received benefits under that system necessarily ended the inquiry as to whether the employee was entitled to benefits.

Thus, Ms. Merlini failed on the criterion that she not be entitled to benefits in any other jurisdiction. For the reasons that follow, I respectfully argue that the Reviewing Board erred.


It is important to note that while Kelly Santini LLP was retained by Ms. Merlini’s attorneys for the purposes of providing expert advice on the subject of Canadian workers’ compensation laws, no one has requested, nor is any paying for, this opinion now.

Second, in order to understand why the Reviewing Board was wrong, one first needs to appreciate what the law actually says; so let’s start there.

There are three Canadian statutes that need to be considered in order to understand why the Reviewing Board’s decision was wrong:

  1. The Government Employees Compensation Act, RSC 1985, c G-5;
  2. The Interpretation Act, RSC 1985, c I-21; and
  3. The Federal Courts Act, RSC 1985, c F-7.

Technically, for reasons explained, below there should be four laws to consider – more on that in a few paragraphs.

The law that was at the centre of the case was the Government Employees Compensation Act, RSC 1985, c G-5, a Canadian federal statute governing how certain federal government workers, including Ms. Merlini are to be compensated in the event of workplace injury. The critical section of that law for Ms. Merlini is subsection 7(2), which provides as follows:

7. (2) The Minister may, with the approval of the Treasury Board, award compensation in such amount and in such manner as he deems fit to

(a) an employee locally engaged outside Canada who

(i) is caused personal injury by an accident arising out of and in the course of his employment, or

(ii) is disabled by reason of any disease that is due to the nature of the employment and peculiar to or characteristic of the particular process, trade or occupation in which the employee was employed at the time the disease was contracted, and

(b) the dependants of such an employee whose death results from such an accident or disease,
and who are not otherwise entitled to compensation under any law respecting compensation to workmen and the dependants of deceased workmen.

Next, to understand why I put such great emphasis on the word “may” in section 7(2), one needs to understand how the word is to be interpreted in Canadian law.

Section 11 of Canada’s Interpretation Act, RSC 1985, c I-21 provides the following definition of the words “may” and “shall”:

The expression “shall” is to be construed as imperative and the expression “may” as permissive.

While one would think that those two statutes would be sufficient to ground an argument that the Reviewing Board got the issue of entitlement wrong, as noted at the start of this section there is at least one, but perhaps as many as two other laws that must be considered. The reason that those laws must be considered is Administrative Law Judge Koziol’s comment that, “the employee was provided the right to appeal the decision to terminate her compensation. (Ex. 2A & 2B.)” Exhibit 2A was section 18(1) of the “Federal Court [sic] Act” and Exhibit 2B was section 2 of the “Government Appeals Act.”

I am going to be honest, I have never heard of the “Government Appeals Act”, nor can I seem to find it. Perhaps it is an American statute. Nonetheless, whatever Exhibit 2B was, I cannot presently see how it provided Ms. Merlini the right “to appeal the decision to terminate her compensation.”

As to section 18 of the “Federal Court Act”, section 18 of the Federal Courts Act provides as follows:

18. (1) Subject to section 28 [which prescribes a list of boards, commissions and other tribunals over which the Federal Court of Appeal has exclusive jurisdiction], the Federal Court has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Admittedly, section 18 is closer to what one might think of as a right of appeal. However, section 18 of the Federal Courts Act gives the Federal Court jurisdiction over “any federal board, commission or other tribunal”, not, I would suggest cabinet ministers.

My evidence before the Department of Industrial Accidents was as set out by Judge Preston: the power to award compensation to locally engaged employees is vested solely in the federal Minister of Labour, who may exercise that power as she sees fit. If the Minister decides that she does not want to provide the injured employee with benefits, then she may exercise her power accordingly and there is no right to challenge that exercise of power. With the greatest of respect to the Reviewing Board, the law does dictate “whether there is an entitlement to benefits;” not simply “how compensation for LES workers is paid.”

One final point, the Reviewing Board found that because simply because Ms. Merlini actually received benefits, she must have necessarily been entitled to the receipt of those benefits. Again, I must respectfully disagree and it goes to the heart of the issue: one can receive something, in this case compensation, not because one is “entitled” to receive the same, but for a host of reasons, including charity.

According to Black's Law Dictionary and the definition of “entitle” is:

In its usual sense, to entitle is to give a right or title. Therefore a person is said to be entitled to property when he has a right to it. Com. v. Moorhead. 7 Pa. Co.Ct. R. 510; Thompson v. Thompson, 107 Ala. 103. 18 South. 247.

Just because someone is in receipt of something does not mean that person has the right to it. Indeed, the legal definition of theft contained within section 322 of the Criminal Code of Canada includes:

Fraudulently and without colour of right [taking], or fraudulently and without colour of right [converting] to his use or to the use of another person, anything, whether animate or inanimate, with intent to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it.

The same is not to suggest that Ms. Merlini stole the benefits that she received, rather the same is offered so as to illustrate the point that one can receive something without being legally "entitled" to it. The legal question that the court was asked to answer was whether Ms. Merlini was “entitled” to the receipt of workers compensation benefits pursuant to the Government Employees Compensation Act, my evidence then, and my opinion now, is that she was not.

Parting Thoughts

Typically, this blog ends with takeaways for those with labour pains. Yet, this post is a little different in that there really is no general takeaway. Ms. Merlini’s case is very unique and subject to any other locally engaged staff of the Consulate General of Canada in Boston becoming injured, and the Canadian government still not paying into the Massachusetts workers compensation regime with respect to those employees, the issue may never come up again.

I don’t know whether the Reviewing Board’s decision is the end of the line for Ms. Merlini. Nor do I make any comment as to the balance of the Reviewing Board’s decision, which appears to be dispositive of the issue – and not in Ms. Merlini’s favour. If there is a further appeal, however, Ms. Merlini’s attorney (and indeed any judge hearing such an appeal) is free to rely on that which is set out above.

Finally, and simply as my own personal opinion, I find it incredible that an employee of the Canadian federal government is left in this position; even if she’s not a Canadian citizen.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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