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Sword or Shield: An Employer’s Guide to the Accident Cost Transfer Provisions under the Workplace Safety and Insurance Act, 1997Lukasz Petrykowski* This discussion piece was written to assist employers and employers’ advocates in appreciating the theoretical and practical considerations surrounding accident cost transfer provisions in the workers’ compensation scheme in the province of Ontario. Legislation1 According to section 84 of the Workplace Safety and Insurance Act, 1997:
WSIB workers’ compensation system dynamics At the micro-level of the workers’ compensation administration mandate, this is the legislative authority for the Workplace Safety and Insurance Board (“WSIB”) in the province of Ontario to transfer the accident costs incurred from a work-related injury from one employer to another employer, under specifiable and limited circumstances. At the macro-level of the workers’ compensation administration mandate, this is the legislative authority by which the WSIB directs the inclusion of accident costs between industry classes and/or particular rate groups, when deemed appropriate. The micro-level has a direct and palpable financial consequence for affected employers while the macro-level has a more discrete and imperceptible quality as accident costs are absorbed into the actuarial abyss of WSIB industry/rate classification and premium determinations through the analysis of accident cost experience among similarly-situated employers. Schedule 1 versus Schedule 2 employers It is also important to note at the outset that accident cost transfers apply to employers found in the pool of Schedule 1 of the workers’ compensation system in Ontario but not to those employers found in Schedule 2. Under the Workplace Safety and Insurance Act, 1997, Schedule 2 employers are recognized as separate and distinct from employers who belong to Schedule 1. The fundamental difference between the two is that Schedule 1 employers operate under the “collective liability insurance principle”2 while Schedule 2 employers do not. The latter are individually responsible for the full cost of the accident claims filed by their workers. The WSIB maintains full authority over Schedule 2 claims administration and bills actual benefit costs plus an annual administration fee3 to Schedule 2 employers. Rights extinguished by subsection 28(1) of the legislation The above-noted legislative excerpt also references the application of subsection 28(1) of the Workplace Safety and Insurance Act, 1997, as it relates to accident cost transfers. This subsection reads as follows:
This provision extinguishes particular rights of action (most particularly, those found in the civil law sphere) against Schedule 1 employers or their employees as a consequence of a worker’s injury or disease. This is the basis for “no-fault” loss of earnings benefits to be awarded for injuries arising out of and in the course of employment, in lieu of rights of action that a worker may have against his or her employer. In most circumstances, any right of action is taken away by this legislation. Subrogation Circumstances do exist, however, where a worker or survivor may have a right of action against a third party. For the purpose of this discussion, a third party is someone other than the worker or the employer, who is not covered under Schedule 1. See also WSIB Policy #15-01-05, entitled “Third Party Rights of Action”, which deals specifically with this topic. In circumstances where such a third party is wholly or partially at fault for an accident, other than situations captured by the cost transfer provisions described below, the worker can elect to receive WSIB benefits or to commence an action against a third party. In most cases, the worker elects4 to receive WSIB benefits for immediate compensatory relief. If the worker does elect benefits, the WSIB is subrogated5 to the worker’s claim if the employer is in Schedule 1. This usually leads the WSIB Legal Services Branch to pursue legal action against a third party to recover the costs of the claim. If the worker’s employer is in Schedule 2, however, the employer is subrogated to the claim instead of the WSIB. Thus, Schedule 2 employers have the advantageous option of considering a civil action against a negligent third party in order to reduce the financial impact of a WSIB claim. For federal government employees, subsection 9(3) of the Government Employees Compensation Act also provides a right of subrogation to the federal government in a mode similar to the above-described Schedule 2 employer subrogation process. Cost Transfer Where an employee of a Schedule 1 employer sustains an injury or illness while in the course of employment because of the whole or partial negligence of an employee of another Schedule 1 employer acting in the course of his or her employment, the Workplace Safety and Insurance Act, 1997, precludes a civil action by the injured employee against the negligent employee or against the employer of the negligent employee. In such a scenario, however, the legislation does give the WSIB the explicit jurisdiction to apportion a percentage of the costs of the claim to the second employer. The percentage assigned to the negligent employer is supposed to be in proportion to the degree of its negligence. These proportions are usually assigned in small-fraction form (i.e. ¼, ½) or their equivalent percentages. For example, if contributory negligence is found to exist between two employers, a decision could be made that ¾ or 75% of the claim costs will reside with the more negligent employer leaving the remaining ¼ or 25% of the claim costs with the less negligent employer. In this way, employers are held responsible for the claim in the same manner as if the injury or illness had occurred to its own employees but only taking into account a proportion of the claim costs. Cost Transfer: WSIB Policy The legislative provisions overarching these cost transfer realities require an underlying administrative framework for its proper implementation. The way this has been accomplished is through the adoption of a Policy Document that is administered by the WSIB. The WSIB Policy Document which attempts to do this is #14-05-01 entitled, “Transfer of Costs”.6 The application of the Policy Document primarily revolves around the axis of negligence. Determining which actor is negligent in the drama of cost transfer proceedings is the central determination for the WSIB in these matters. The WSIB has imported a common law definition of negligence as the starting point for this cost transfer adjudication. They have defined negligence as being composed of both omissions and acts in the following way:
Process: General In determining the existence of negligence, the WSIB follows a particular process in fulfilling their cost transfer adjudicative mandate. According to WSIB Policy #14-05-01, entitled “Transfer of Costs”, the WSIB primarily investigates possible negligence based on the following:
Any employer may also request that a cost transfer be made.9 This can be done in the absence of any WSIB cost transfer activity. This is how an accident cost transfer can act as a sword. One employer may believe or allege that another employer should bear the accident claim costs because of the latter’s negligence and so a request is made for the transfer to take place. This is an offensive thrust that is intended to slay the employer’s exposure to accident claim costs. For a cost transfer to succeed, an onus rests on the first employer to show that a second employer was negligent. The second employer, however, does not bear an onus to disprove its negligence. Conversely, an allegedly negligent employer would resist10 such a salvo by using the cost transfer criteria as a shield to deflect all (no negligence on their part) or some (minimal contributory negligence on their part) of the exposure to the accident claim costs. Conceivably, this process could also involve more than two employers such as a work-site where three employers are jointly working on an industrial undertaking or construction project. A Transfer of Costs Adjuster (TCA) in the WSIB’s Prevention Services Branch conducts the initial WSIB investigation and makes a decision concerning any cost transfers. Any such decision may be appealed to the WSIB’s Appeals Branch in the same manner as if it were a decision of a Claims Adjudicator on an entitlement issue. Process: Hearing The structure of a hearing on a cost transfer issue is generally the same as an ordinary hearing concerning entitlement but because the parties are usually two employers (instead of an employer and a worker), both the WSIB and the Workplace Safety and Insurance Appeals Tribunal have afforded a more adversarial nature to the proceedings than the inquisitorial nature which is generally expected in other hearings. Since a cost transfer pursuant to section 84 of the Workplace Safety and Insurance Act, 1997, has no impact on the benefits to which a worker may be entitled in a claim,11 it is conceivably rare to have a worker participate in a hearing on this issue since he or she would not have a direct interest in the outcome of the appeal, which is the usual threshold for participation in administrative proceedings. This is not to say, however, that there is no place for workers at such hearings because they often appear as central witnesses presenting viva voce evidence of great significance to the issue of determining negligence. Process: Evidence In terms of other evidence, a cost transfer decision can be rooted in numerous sources of information. According to WSIB Policy #14-05-01, entitled “Transfer of Costs”, the evidentiary basis for a TCA’s investigation and adjudication can include:
Clearly, the list is not meant to be exhaustive and relevance will be the primary consideration to the admission of any proposed evidence. Other sources of information could include documentation from the Ministry of Transportation, contracts, purchase orders, invoices, maintenance logs, equipment design schematics, routine workplace inspection reports, human resources records, and so on. Experience Rating Considerations In determining negligence and assigning whole or partial responsibility for accident claim costs through the above-outlined transfer process, experience rating realities in Ontario’s workers’ compensation scheme are central to understanding the actual cost or benefit from the process. From the point of view of the worker, the financial consequences of entitlement to WSIB benefits are obvious. They retain a mathematical parity (one-to-one correspondence) which is expected when paying benefits from the WSIB’s insurance fund and into a worker’s pocket. For an employer, however, it is more difficult to assess the financial implication of WSIB entitlement decisions as an analogous parity does not exist for employers because of the existence of an experience-rated environment (such as that found within NEER). Employers traveling on the globe of experience rating will quickly discern its inherent polarity. One pole contains WSIB entitlement decisions of no cost consequence to an employer, such as a situation where an employer is already insulated by the fact that it has reached its maximum experience rating surcharge for a particular accident year. The equatorial region on this globe contains too diverse an array of hypothetical experience-rated results to be catalogued herein. The other pole on this globe encompasses WSIB entitlement decisions which have a grossly disproportionate financial impact owing to intrinsic experience rating system dynamics. For example, a severe work-related injury could result in extensive WSIB entitlement for a worker. In the NEER-experience rating system, it is quite conceivable that such an episode could attract the maximum claim cost limit for experience rating purposes. In the 2006 accident year, this maximum is set at $69,400 (2006 maximum annual insurable earnings) multiplied by five, or $347,000. For a large employer who could attract a NEER rating factor of one (or 100%), this would translate into the hypothetical claim having a cash value in the form of a NEER surcharge equal to the maximum claim cost, $347,000. This demonstrates the financial apogee of WSIB claim costs in an experience-rated environment. It also demonstrates the importance of one employer attempting to transfer accident costs to another employer, if it is suspected that another employer was negligent by way of act or omission for the injuries sustained to a worker. This mechanism for cost relief is legitimately envisioned and can be accomplished by understanding the cost transfer realities borne by legislation and WSIB Policy. Conclusion The purpose of this discussion piece was to shed light on various considerations concerning the accident cost transfer provisions available to employers. It should serve as a polestar for any voyage along the sometimes rough waters of the workers’ compensation scheme in the province of Ontario. * Lukasz (Luke) Petrykowski, B.Sc., LL.B., is a lawyer at CompClaim Management Inc., an employer-side resource specializing in workers’ compensation, disability management, and health and safety issues. He articled in the Tribunal Counsel Office of the Workplace Safety and Insurance Appeals Tribunal. The views expressed in this article are solely those of the author. The WSIB’s Early and Safe Return to Work Draft Policies: Usurping Law through Policy or Leveling Power Imbalances?Maryth Yachnin* “Work-related injury and ESRTW have fundamentally different primary meaning and consequence for workers and employers. For workers they constitute matters of body, livelihood, and moral identity. For employers, they constitute matters of business economics and managerial autonomy”
Introduction In October 2005, following several years of consultation with both worker and employer stakeholders, the WSIB introduced draft policies on its approach to the Early and Safe Return to Work (“ESRTW”) of injured workers. These policies move to some extent away from a focus first and foremost on the earliest possible return to work, as well as towards ensuring that offered work consists of real work of value. The policies also set out with more specificity the duties of workers and employers to co-operate, incorporate some principles of human rights accommodation, and somewhat expand the role of the WSIB in ESRTW, especially in educating parties about their obligations. The WSIB invited interested stakeholders to make written submissions on the draft policies to be provided by January 26, 2006. The WSIB received about 70 submissions, the significant majority from organizations of or representing employers. Currently, the WSIB is undertaking public meetings to further consult on the draft policies. The WSIB also prepared a Consultation Report summarizing the positions of the stakeholders who made submissions about the draft policies.2 Employer submissions were generally not supportive of the draft policies, arguing that they would impose unfair and onerous burdens on employers, particularly small employers and Schedule 2 employers, and that the draft policies fall afoul of the statutory provisions governing return to work in the Workplace Safety & Insurance Act (“WSIA”).3 Worker groups were generally supportive of the direction suggested by the draft policies. Worker advocates also argued that the draft policies - contrary to the “self-reliance” model evident in the current ESRTW policies - evidence a fair, large and liberal interpretation of the WSIA, and especially of the WSIA’s provisions about the Board’s role in ESRTW.4 Although the draft policies are complex and contain many issues worthy of discussion, a few of the most contentious issues arising from the ESRTW draft policies are the definition of “early” return to work, the meaning of “suitable” work, the penalties for non-co-operation or refusal of suitable work, and the incorporation of Human Rights Code obligations into the ESRTW process. In this short paper, I briefly highlight the central debates between employers and workers with respect to these key issues. I conclude by suggesting that the draft policies do not move nearly as far in favour of workers’ interests as employers’ strong reactions would suggest. “Timely” vs. “Early” Return to Work The draft policies set out that “[a]n ‘early’ return to work means a ‘timely’ return to work. Rather than focusing on the timing of the return to work activities, the focus should be on the appropriateness of the return to work” (19-02-02). A timely return to work emphasizes a return to work as soon as the worker is “functionally fit” for some form of suitable work, considering the nature of impairment, the worker’s functional abilities/pattern of recovery and the capacity of the employer to provide suitable work and appropriate accommodations. The draft policies also clarify that in some cases, due to the nature of the impairment, workers may need to be off work completely. While workers, worker representatives and labour groups have supported the move away from a focus on “early” return to work, employers and employer representatives have expressed concern that the WSIB’s proposed interpretation of an “early” return to work as a “timely” return does not comply with an ordinary, grammatical interpretation of the statutory language of the WSIA, which speaks about an “early and safe return to work”. Employers and employer advocates therefore state that the WSIB is effectively re-writing the legislation through policy. Workers, on the other hand, argue that the draft policies continue to judge the success of ESRTW by how quickly the worker is able to return to work, rather than by the appropriateness of the return to work Definition of Suitable Employment The draft policies change quite significantly what the WSIB will consider “suitable and available” work for the purposes of early and safe return to work. The current definition of suitable work evident in both the ESRTW policies and the re-employment policies is:
The revised interpretation of suitable work is “post-injury work that is safe, productive, remunerated and sustainable”. This definition sets out a number of new considerations, many of which appear aimed to discourage employers from offering make-work jobs in order to get the worker back to work as soon as possible.5 For example, the productivity of work will consider whether the work adds value to the company and whether the company would normally pay someone to do the work offered. The remunerated criterion considers whether the work would be comparably remunerated in the general labour market. Sustainable work is defined as “ideally” a job that exists in the general labour market at a rate of pay that approximates the pre-injury wages. Employer groups have objected to the revised interpretation of suitable work on a number of bases. One of these is that there is no authority in the legislation for an expanded policy interpretation of suitable work. Although there is no definition of “suitable work” in the WSIA, the current policy interpretation appears to rest strongly on the wording in s. 40 regarding the employer’s obligation to attempt to provide “suitable employment that is available and consistent with the worker’s functional abilities and, when possible, restores the worker’s pre-injury earnings”.6 Just as centrally, however, employers and employer advocates object that the requirements for productive, remunerated and sustainable work are unfair and unpractical for employers, especially for small employers who have clearly defined jobs with little room for variation. Obligations and Roles of the Parties Employers are concerned about the co-operation requirements suggested by the draft policies. While the employer’s stated co-operation obligations are the same as those provided in the WSIA (namely maintaining communication with the worker, attempting to provide suitable employment and providing requested information to the Board), some additional factors are listed in the draft policies as providing guidance to the WSIB about whether an employer is fulfilling these requirements. Employers argue that these additional “indicators” of non-co-operation, such as “failing to provide suitable work that is available” and “failing to provide an inexpensive accommodation” exceed the employer’s statutory obligation to attempt to offer suitable work and impose unauthorized requirements on employers.7 Concerns were also raised by workers on a number of issues relating to their proposed co-operation obligations. For example, the draft policies propose that in most cases, before refusing work that the employer thinks is suitable, workers should attempt those aspects of the job that are safe. Worker advocates question how workers are supposed to assess which aspects of an unsuitable job are safe. In addition, workers are required in all cases to provide specific reasons why the offered work is not suitable. Worker advocates have pointed out that no such obligation rests on employers to provide reasons about why a job is suitable, a fact which ignores the power and knowledge imbalance between employers and workers. Penalties for Non-Co-operation or Refusal of Suitable Work Both worker and employer stakeholders have expressed concerns about the proposed penalties on parties for non-cooperation. The draft penalties introduce, for the first time, a scheme for penalties on employers for breach of their s. 40 ESRTW obligations, as authorized under s. 86 of the Act.8 The current ESRTW policies have no express allowance for penalties for employer breaches of s. 40. Employers have argued that the scheme described in the draft policies, which allows for a maximum penalty equal to 100% of the costs of wage loss benefits and LMR services provided to the worker, for a maximum of 12 months, is unfair to employers, especially smaller employers and Sch. 2 employers who are required to individually pay for all benefits to employees. Employers have also argued that it is unfair for employers to be penalized by the payment of LMR costs, when employees only lose the value of loss of earnings benefits. Employers also object to the suggestion of the draft policies that a worker’s refusal of what the employer considers suitable work will not generally by treated as non-co-operation. Employers have suggested that this seems counterintuitive and wrong on its face. Workers, while supportive of the recognition that refusing what a worker considers unsuitable or unsafe work is not non-co-operation, have serious concerns about the provisions in the draft policies for retroactive collection of debts from workers. The draft policies suggest that retroactive collection will be made both for non-co-operation penalties and for loss of earnings benefits paid after a worker refuses work that is later determined to have been suitable.9 Worker advocates have argued that such collection could amount to reprisals for refusal of unsafe work under the Occupational Health and Safety Act.10 Human Rights Legislation A few aspects of the draft policies expressly incorporate the Ontario Human Rights Code and Canadian Human Rights Act obligations of the WSIB, unions and employers into the early and safe return to work process. For example, the policies state that employers must, in the absence of a re-employment obligation, make reasonable efforts to accommodate a worker’s disabilities/impairments, and, where a re-employment obligation exists, accommodate the work or the workplace to the extent of undue hardship. This aspect of the policies has raised concerns for both workers and employers. Worker advocates point out that, while the WSIA itself only specifies a duty to accommodate to the point of undue hardship in the context of a re-employment obligation,11 all employers have a duty under human rights legislation to accommodate workers with disabilities to the point of undue hardship. Therefore, the draft policies do not accurately reflect the employer’s duty to accommodate under human rights legislation.12 Some worker advocates also propose that a penalty should be levied for an employer’s failure to accommodate. If the duty of attempting to provide suitable employment under s. 40 is interpreted in accordance with human rights obligations, failure to accommodate the worker’s pre-injury job to the point of undue hardship could attract a penalty under s. 86. Indeed, employers seem to be reading the possibility of such a penalty into the current draft policies. A number of employer advocates raised the concern that, while the human rights obligations noted in the draft policies apply to employers, unions and the WSIB, only employers could be penalized if their obligations are not met.13 Some employers also take the position that it is not the WSIB’s proper role to educate employers about their human rights obligations, and may even place the WSIB in a jurisdictional conflict. In addition, employers are very concerned about provisions in the draft policies stating that, in order to fulfill its Human Rights Code obligations, the WSIB must consider workers’ pre- and post- injury non-work-related disabilities in fulfilling its responsibilities to provide labour market re-entry (LMR) services. Although the policies expressly state that the WSIB is entitled to refuse to pay for LMR services where the need for LMR services arises only because of a non-work-related disability, employers and employer advocates object strongly that the WSIB should not have to provide accommodations because of post-accident non-work-related disabilities. Conclusions Workers and worker advocates have generally seen the draft policies as a step in the right direction. The draft policies make some incremental steps towards the provision of “real” jobs to injured workers, and at least pay some attention to the fruitlessness of forcing workers back to work at the earliest possible opportunity in all cases. However, the draft policies by no means address the experiences of injured workers who, burdened with pain and injury, have to navigate – often without assistance - what Joan Eakin refers to as “the discourse of abuse”, wherein they are constantly suspected of fraudulent behaviour. Workers feel “powerless to make [the ESRTW process] work better for themselves except in ways that put them at risk of further harm”.14 Indeed, the false conception that employers and workers are equal parties continues to dominate in the draft policies. How can employers legitimately argue that the penalty on employers is unfair because it includes the cost of LMR services when workers face the loss of their entire source of income on a potentially permanent basis? How can workers be expected to provide evidence about why a particular job is not suitable? How are workers expected to deduce which aspects of a job will be “safe” for their medical condition, so that they can attempt only those aspects and avoid re-injury? And why should workers be required to repay the Board if it turns out they were wrong in refusing a job the Board later determines was actually suitable? In short, the burdens of the ESRTW process continue to fall largely on workers, who are ill-equipped to handle them. While employers are concerned by a number of aspects in the draft policies, it seems they therefore might be over-shooting in their interpretation of the possible consequences of the draft policies. Many of the draft policies suggest best practices for offering suitable work, but the onus remains on workers to attempt the offered job in almost all cases, and if refusing, to provide reasons as to why the work is not suitable. There are valid -concerns raised about employers, especially small employers, who may not have the knowledge or resources to fully respond to the requirements of the draft policies. However, it is in these same small, non-unionized workplaces that workers are most unable to advocate for themselves and protect themselves from further harm. It is true that – for the first time – penalties may be levied against employers for non-co-operation under s. 40 of the WSIA.15 At the same time, though, the draft policies continue to allow penalties on workers which remove their entire livelihood, and which now may allow the WSIB to retroactively collect benefits from workers - many of whom will be living on limited incomes and with permanent disabilities - for wrongly refusing suitable work. Employers should also be reminded that the WSIB has historically treated employers leniently with respect to their ESRTW obligations, such that there are not even any penalties provided by current policy. It is not reasonable to suppose that the WSIB will now start to impose significant penalties on employers who have legitimate reasons for not fulfilling or understanding their obligations. The WSIB will likely continue, as it always has done, to only address employer breaches where there are significant and without reasonable explanation. Therefore, the draft policies only make incremental changes to even the power imbalance between workers and employers in the ESRTW process. It would be unfortunate indeed if even these small changes to level the playing field were undermined by failure to implement the draft policies based, for example, on the narrow interpretation of the WSIA ESRTW provisions proposed by employers. While employers’ administrative and economic interests certainly are one factor in ESRTW, they must be balanced with the issues of “body, livelihood, and moral identity” facing injured workers as they attempt to navigate a safe and sustainable return to work. * Maryth Yachnin is a Staff Lawyer Industrial Accident Victims Group of Ontario (I.A.V.G.0.). The opinions expressed in this article are hers, and not necessarily those of I.A.V.G.0. 1 Report on Research Funded by the Research Advisory Council of the Ontario Workplace Safety and Insurance Board, November 2002, p. 42. 2 WSIB Benefits and Revenue Policy Branch, “Early and Safe Return to Work Policy Consultation Report”, April 25, 2006 (“Consultation Report”) 3 R.S.O. 1997, c. 17. 4 The WSIA provisions with respect to the WSIB’s role in ESRTW read: 40 (5) The Board may contact the employer and the worker to monitor their progress on returning the worker to work, to determine whether they are fulfilling their obligations to co-operate and to determine whether any assistance is required to facilitate the worker’s return to work. (6) The employer or the worker shall notify the Board of any difficulty or dispute concerning their co-operation with each other in the worker’s early and safe return to work. (7) The Board shall attempt to resolve the dispute through mediation and, if mediation is not successful, shall decide the matter within 60 days after receiving the notice or within such longer period as the Board may determine. 5 The draft policies expressly note that an offer of long-term work that adds little value to the employer’s products or services or pays inflated wages in relation to the value of work will likely not lead to a satisfactory long-term return to work outcome. 6 Employers also objected that it would create confusion and inconsistency to change the definition of suitable work with respect to ESRTW, while the definition of suitable work with respect to the re-employment obligations remains unchanged. 7 Employers have argued that, in essence, the WSIB is improperly importing a re-employment obligation which exists separately under s. 41 of the WSIA into the ESRTW obligations at s. 40. The same point is made with respect to importing human rights obligations to provide accommodations, which are expressly set out in s. 41 of the WSIA but not in s. 40. However, I would note that the employer’s co-operation duties are set out in the draft policies exactly as stated in the legislation. The additional “indicators” of non-co-operation appear to only be factors for the Board to consider in adjudicating the employer’s level of co-operation with the express statutory duties. 8 86.(1) If the Board decides that an employer has failed to comply with section 40 (return to work), the Board may levy a penalty on the employer that is such percentage as the Board may determine of the cost to the Board of providing benefits to the worker while the non-compliance continues. (2) The penalty is an amount owing to the Board. 1997, c. 16, Sched. A, s. 86. 9 Worker advocates point out that retroactive collection of non-co-operation penalties and of loss of earnings benefits paid during a dispute over refusal of suitable work is inconsistent with the WSIB’s general policy on benefit-related debts where recovery is not pursued when a decision is overturned unless there is evidence of fraud, false or misleading statements or a failure to report a material change. 10 R.S.O. 1990, c. 0.1. 11 S. 41(6) of the WSIA reads: “The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship”. 12 Another potentially problematic policy with regard to employers’ obligations to accommodate is the suggestion that the employer may be found non-cooperative for “failing to provide an inexpensive accommodation” (19-02-07). 13 It is not immediately apparent on what basis employers believe the WSIB would penalize them for failure to comply with human rights obligations. Indeed, the WSIB’s Consultation Report states that “[t]he WSIB’s role is envisioned as one of informing and educating the workplace parties about such responsibilities and encouraging their fulfillment”, rather than as enforcing human rights obligations. 14 Eakin, supra note 1 at 47. 15 Although this is expressly allowed by the WSIA, and its exclusion from the current ESRTW policies may be an example of the Board fettering its discretion under s. 86 of the WSIA Is the Historic Trade-off Unravelling?Michael Zacks* A recent decision of the Grievance Settlement Board (GSB) has undermined one of the founding pillars of workers’ compensation in Ontario. The decision, released October 6, 2005, is an interim decision in a grievance between the Ontario Public Service Employees Union and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services).1 The critical facts are that the worker, Lariviere, filed several grievances including a health and safety grievance and a violation of the Occupational Health and Safety Act. The union gave notice that it would be seeking, in addition to a declaration of violation, compensation for all loss of income the grievor suffered from the date of injury (December 13, 2001) ”into the future”. As well the Union demanded substantial damages for pain and suffering, and mental anguish the grievor suffered and continues to suffer as a result of the injury. The employer responded that the GSB lacked jurisdiction to award monetary compensation to the grievor as the worker’s right to be compensated for a workplace injury fell within the exclusive jurisdiction of the Workplace Safety and Insurance Act. (WSIA), and that s. 26 prevented the GSB from taking jurisdiction over the issue:
It was undisputed that after the grievor went off work following her injury. She subsequently applied for and received benefits under the WSIA. Under the parties’ collective agreement, the employer topped up 100 percent of the grievor’s regular wages for the first 65 eight hour shifts she missed. The worker received 85 percent of regular wages thereafter – loss of earnings benefits under the WSIA. The worker then received LTIP benefits, which supplemented the WSIA loss of earnings benefits. The parties submitted the question of whether the GSB had jurisdiction to award compensation for determination. The fundamental question was whether the worker’s entitlement to compensation was circumscribed by the WSIA, or whether the GSB had the jurisdiction to award damages in addition to those provided under the WSIA. The vice chair considered and reviewed several previous GSB decisions made under the former Workers’ Compensation Act (WCA). These decisions considered s. 14, the predecessor of s. 26(2), which read:
The GSB case law on this issue was stated as follows:
This case law was made under the WCA. GSB case law held that the GSB lacked jurisdiction to award additional damages for losses arising from a compensable injury because of the wording of s. 14. As well a previous GSB decision held that damages for pain and suffering, and mental anguish may not be sought from the GSB where the source of the pain and suffering is the compensable injury, which was the case in this matter. However, the greivor argued that the case law was developed under the WCA, and that s. 26(2) of the WSIA that applied to this case omitted the critical phrase “in lieu of all rights” from s. 26(2), that was included in the predecessor sections which had read “in lieu of all rights and rights of action (statutory or otherwise)”. The word action is defined in s. 1 of the Courts of Justice Act as
Although it was not specifically referred to in the decision, s. 30 of the Interpretation Act provides that
Accordingly, the Courts of Justice Act definition of an action makes it clear that grievances are not actions, although they are rights, the enforcement of which were excluded from the arbitral jurisdiction under the former WCA. As such employer’s counsel correctly conceded that rights of action reference in s. 26(2) did not include the arbitral enforcement of rights under a collective agreement. After considering the case law and counsels’ arguments, the vice chair concluded,
……
The historic trade-off in workers’ compensation provided that workers were protected by a no fault insurance system and employers enjoyed protection from legal action from their workers. The Supreme Court of Canada restated the trade-off in the case of Pasiechnyk v. Saskatchewan (Workers' Compensation Board):3
The historic trade off was contained in Justice Meridith’s draft workers’ compensation statute of 1914 in the exact wording contained in s. 14 of the WCA. It was always the intention that the trade-off intended to protect employers from both law suits brought in the courts and all other rights, statutory or otherwise. The historic trade-off or bargain has figured prominently in several tribunal decisions that considered employer immunity from civil action. In Decision No. 177/91 the panel quoted with approval from a previous decision:
In my view the Lariviere Grievance reflects a departure from a bargain that has lasted over 90 years. The legislative change created by Bill 99 through the removal of the phrase all rights is a significant departure from the historic bargain, albeit one that does not appear to have been intended. Employers are justifiably concerned about this change, and will be raising it with the government to return the bargain to its traditional historic formula. * Michael Zacks is the Acting Director and General Counsel for the Office of the Employer Adviser, (416) 314-8735, Michael.zacks@mol.gov.on.ca. The opinions expressed in this article are solely his own, and do not necessarily reflect the views of the OEA, Ministry of Labour or Government of Ontario. 1 [2005] O.G.S.B.A. No. 124 2 Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Lariviere Grievance) 3 [1997] 2 S.C.R. 890 Update: Two Judicial Reviews to End 2005, Marking the Continuation of the WSIAT’s Consistent RecordTanya Zigomanis* Where there is no appeal from a decision, judicial review is an avenue sought after by many parties. Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions have consistently been held to the standard of patent unreasonableness, an approach taken from the 1979 decision of C.U.P.E. v. New Brunswick Liquor Corp.1 The Court in C.U.P.E. held that as long as the Tribunal’s interpretation was not patently unreasonable, the court would afford deference to it. The overall rationale is that Tribunals have special expertise. The idea of the strong privative clause resulting in no right of appeal (in the Tribunal’s relevant legislation) emerged out of this Supreme Court of Canada decision, as well as many decisions, which would follow it. The WSIAT has seen an upsurge in the number of judicial reviews of its decisions in recent years. This past fall, the WSIAT was a party in two judicial review applications, which took place in London and Toronto, respectively. Dan Revington, the WSIAT’s General Counsel, represented the Tribunal as respondent, in the Divisional Court. The Court dismissed both applications. On November 9, 2005, the worker’s application for judicial review of WSIAT Decision No. 117/04 was heard in London. The applicant’s counsel argued that the Tribunal’s findings were patently unreasonable.2 The issue before the Panel in WSIAT Decision No. 117/04 was whether the plaintiff in a civil case was a worker under the Workplace Safety and Insurance Act (WSIA). The plaintiff was a courier on the premises of the defendant, Shaw Auto Recyclers, while picking up an item for delivery when he was injured. The appeal at WSIAT was part of a specific class of appeals brought under s. 31of the WSIA better known as “right to sue” appeals.3 The defendant applied to the Tribunal to determine whether the plaintiff’s right of action was taken away. The Panel noted that the central question is “What is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship”.4 Although the plaintiff owned his own van and paid the expenses of operating the van, the courier company maintained other elements of direction and control over the plaintiff. He had to be available at specific times and submit billings. By contract with the courier company, he was limited in the number of replacement drivers he could engage. Following WSIB policy, WSIAT Decision No. 1146/02 and WSIAT Decision No. 921/89, the Panel concluded that the plaintiff was a worker of the courier company for the purposes of the WSIA. It was determined that he was in the course of employment at the time of the accident and his right of action was taken away by s.28 (1) of the WSIA.5 Counsel for the applicant in the judicial review of WSIAT Decision No. 117/04 argued that the decision was patently unreasonable because the Tribunal considered irrelevant evidence and failed to consider relevant evidence. Shaw Auto Recyclers, the respondent in the judicial review argued that there was evidence from which the WSIAT could conclude that the applicant is a worker and therefore the decision is not patently unreasonable. In their decision, Judges Cunningham, Platana and Pierce agreed that the question was one of mixed fact and law and that the matter turned on a factual finding based on the relationship between the parties. In their endorsement, the judges stated, “strong deference should be shown to this specialized Tribunal”.6 The judges confirmed that the Tribunal was entitled to consider all of the evidence and to determine what they considered to be relevant or irrelevant. They referenced the well-known Supreme Court of Canada decision 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. in stating that the weight of each factor to determine employee or independent contractor status will depend on the particular facts and circumstances of the case.7 It is important to note that the Court recognized that the Tribunal is a specialized body protected by a strong privative clause, s.123 of the WSIA,8 and is entitled to curial deference in interpreting its statute and assessing the facts of an appeal. The Court confirmed that it could only interfere with a decision if it is patently unreasonable. The judges quoted the 1997 Supreme Court of Canada decision of Toronto Board of Education v. Ontario Secondary School Teachers’ Federation District 15 in reasoning that a Tribunal’s decision must stand where it cannot be demonstrated that the evidence reasonably viewed by the Tribunal is unable to support the Tribunal’s findings. The judges concluded that even if they could come to a different conclusion on the facts, the Tribunal used the right approach and principles. In the end they found that ample evidence existed to allow the Tribunal to come to its decision and thus it was not patently unreasonable. The endorsement was released on December 20, 2005, suggesting that the judges took time to review the arguments presented and the material before them. A short time later, on November 29, 2005, Mr. Revington appeared for the Tribunal in a judicial review in Toronto. The application for judicial review was brought by a worker with respect to two decisions: WSIAT Decision No. 1584/02 and WSIAT Decision No. 1584/02R.9 In the first decision, the Tribunal found that the worker’s accident in 1991 did not cause or contribute to the worker’s symptoms of seizure that the Tribunal found to have begun in 1993. The reconsideration decision concluded that the threshold test for granting a reconsideration request had not been met. The Court, consisting of Judges Pardu, Epstein, and Lax, set out the issues to be: (1) what is the appropriate standard of review and (2) applying the appropriate standard, did the Tribunal err. The decision was given orally within 30 minutes of hearing the parties’ arguments. The judges noted that the Tribunal had to weigh conflicting medical opinion regarding the worker’s condition, similar to the Tribunal’s duty in Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal).10 The judges held that in that decision there were no distinguishing features to this case, which led them to confirm that the standard of review was patent unreasonableness. In concluding, the Court decided that the Tribunal properly reached and explained its decision again referring to Roach. The judges found that the record before the Tribunal supported its decision. These two judicial review decisions of November 29, 2005 and December 20, 2005, stand as proof that the Tribunal remains a strong body employing experienced adjudicators whose decisions are confirmed upon judicial review. * Tanya Zigomanis is a graduate of Osgoode Hall Law School and is currently articling in the Tribunal Counsel Office of the Workplace Safety and Insurance Appeals Tribunal. The opinions expressed in this article are hers, and not necessarily those of the Appeals Tribunal. Tranchemontagne v. Ontario (Director, Disability Support Program): Can a tribunal decline to consider human rights legislation in its decisions?Wen-Ying Mark* On April 21, 2006, the Supreme Court of Canada decided in Tranchemontagne v. Ontario (Director, Disability Support Program)1 (“Tranchemontagne”) that the Ontario Social Benefits Tribunal had presumptive jurisdiction to consider the application of the Ontario Human Rights Code2 (“Code”) and could not decline to exercise that jurisdiction. In 1998 and 1999, appellants Robert Tranchemontagne and Norman Werbeski applied for support pursuant to the Ontario Disability Support Program Act, 19973 ("ODSPA"). Their applications were rejected and they appealed to the Ontario Social Benefits Tribunal (“SBT”). The SBT held that the appellants were suffering from alcoholism and rejected their appeals pursuant to s. 5(2) of the ODSPA, which disqualifies persons for income support on the basis of alcohol dependency or addiction. The appellants argued that s. 5(2) of the ODSPA was inapplicable by virtue of the Code. The SBT decided that it did not have jurisdiction to consider the applicability of s. 5(2) of the Code and dismissed their appeals. The appellants appealed to the Ontario Divisional Court, which agreed that the SBT did not have jurisdiction to consider the Code. The appellants then appealed to the Ontario Court of Appeal. The Court of Appeal decided that although the legislature did not remove the jurisdiction to consider the Code from the SBT, the SBT should still have declined to exercise its Code jurisdiction, as it was not the most appropriate forum to decide the Code issue. The appellants appealed the SBT’s refusal to hear Code issue to the Supreme Court of Canada (“Court”). In determining whether the SBT had jurisdiction to apply the Code, the Court split 4-3. Justice Bastarache, for the majority of the Court, discussed Nova Scotia (Workers’ Compensation Board) v. Martin (“Martin”).4 In Martin, the Court had clarified that if administrative tribunals are empowered to consider questions of law, the tribunals will have a presumptive power to “go beyond the bounds of their enabling statute and decide issues of common law or statutory interpretation that arise in the course of a case properly before them, subject to judicial review on the appropriate standard”.5 As the SBT’s two enabling statutes, the ODSPA and the Ontario Works Act, 19976 (“OWA”), empower the SBT to decide questions of law, the majority held that SBT has the presumptive power to consider Code issues. Justice Bastarache explained that the presumptive power of a tribunal to go beyond its enabling status exists because it is undesirable for a tribunal to apply its own enabling legislation in isolation from the rest of the law. If a tribunal does not consider the whole law, it is more likely to come to a “misinformed conclusion”, which in turn leads to “inefficient appeals” or more unfortunately, a “denial of justice”.7 The SBT is precluded from determining the constitutional validity of a provision or regulation and cannot determine the legislative authority for making a regulation.8 However, the majority made a clear distinction between the Code and the Constitution. As Justice Bastarache wrote for the majority, “[a] provision declared invalid pursuant to s. 52 of the Constitution Act, 1982 was never validly enacted to begin with. It never existed as valid law because the legislature enacting it never had the authority to pass it. But when a provision is inapplicable pursuant to s. 47 of the Code, there is no statement being made as to its validity. The legislature had the power to enact the conflicting provision; it just so happens that the legislature also enacted another law that takes precedence.”9 Thus, where a tribunal or court applies s. 52 of the Constitution Act, 1982, it is ruling that the legislature was wrong to enact the provision in the first place, and effectively defies and overturns legislative intent. Where a tribunal or court applies s. 47 of the Code, it is applying the legislature’s intent for the primacy of the Code10 and is actually implementing the legislature’s intent. The legislature, of course, can restrict the powers it confers upon its statutory tribunals, subject to any constitutional restrictions. Although s. 67(2) of the OWA removes Charter issues from the SBT’s jurisdiction, the majority held that the legislature could not have chosen to exclude the SBT from denying the Code by analogy to the Constitution. Justice Bastarache noted that “[w]hile [the legislature] clearly prohibited the SBT from considering the constitutional validity of laws and regulations, it equally clearly chose not to invoke the same prohibition with respect to the Code. In the context of this distinction, I must conclude that the legislature envisioned constitutional and Code issues as being in different "categories of questions of law," to use the language of Martin, at para. 42.”11 In addition, the majority held that even if there is a more appropriate forum, the SBT cannot decline to hear a Code issue. In s. 34 of the Code, the Ontario legislature chose to grant the Ontario Human Rights Commission the discretionary power to decline to hear complaints better considered under another Act. The Ontario legislature has not seen fit to grant the SBT the discretion to decline to hear an issue of which it is properly seized, such as Code issues, whereas it has expressly directed that the SBT must refuse to hear frivolous or vexatious complaints.12 In contrast to the decision at the Ontario Court of Appeal, the majority decided that the SBT could not decline to deal with Code issues, even if a more appropriate forum existed, as the SBT has not been granted the authority to decline jurisdiction over Code issues. Where the legislature has defined the jurisdiction of its tribunals, so long as the jurisdiction does not infringe the Constitution, it is not for the tribunals or courts to decide that the jurisdiction conferred by the legislature is deficient. Although it is important that tribunals function efficiently, tribunals should not improperly ignore issues that the legislature intended it to consider.13 Justice Bastarache also noted that human rights legislation is the “last protection of the most vulnerable members of society”,14 and must be accessible in order to be effective. When many administrative bodies apply human rights legislation, this fosters a general respect for human rights in the administrative system and brings justice closer to the people.15 Justice Bastarache noted that allowing the SBT to consider human rights legislation would increase access to justice. Writing for the minority, Justice Abella disagreed with Justice Bastarache’s determination that the legislature could not have meant to remove the SBT’s jurisdiction to apply the Code merely by removing the SBT’s jurisdiction to apply the Constitution. Justice Abella noted that tribunals do not have the power to make formal declarations of invalidity and the application of either the Charter or the Code could render an enabling provision inoperable. Justice Abella reasoned that the legislature removed the SBT’s jurisdiction over Charter issues because the legislature did not intend the SBT to have the power to declare any of its enabling provisions as inoperable. Following this line of reasoning, the legislature would not have intended the SBT to have jurisdiction over Code issues, as the application of the Code could also render an enabling provision inoperable. In other words, by revoking the SBT’s jurisdiction over Charter issues, the legislature has, “by clear implication, withdrawn authority to grant the remedy of inoperability under either mandate.”16 In addition, Justice Abella stated that the SBT was meant to be an efficient and quick process. In contrast to the majority view, Justice Abella noted that if the SBT were to consider complex, time-consuming Code issues with no precedential value, it would hinder access to justice for the other appellants at the SBT. In summary, Tranchemontagne stands for the principle that where a tribunal is empowered to consider questions of law, absent any legislative or constitutional restrictions, the tribunal’s presumptive power to go beyond its enabling statute requires the tribunal to consider the whole law, including the Ontario Human Rights Code, irrespective of the tribunal’s jurisdiction over Charter issues. * Wen-Ying Mark is an articling student with the Workplace Safety and Insurance Appeals Tribunal. The opinions expressed are hers, and not necessarily those of the Tribunal. Workers’ Compensation UpdateMichael Zacks* New WSIB chair nominated The Government of Ontario has nominated former MPP and federal Cabinet Minister Steve Mahoney as Chair of the Board of Directors. If confirmed, subject to review by the Standing Committee on Government Agencies and appointed by the Lieutenant Governor in Council, Mr. Mahoney would take over from current acting Chair Jill Hutcheon, who will remain as President. Mr. Mahoney is a former politician with over 25 years of experience at the municipal, provincial and federal levels of government, including one year as Federal Secretary of State for Crown Corporations. He was previously Labour critic in the Ontario legislature.1 Independent Operator Consultation The Honourable Steve Peters, the Minister of Labour, has announced a public consultation to consider imposing mandatory registration and coverage for independent operators in the construction sector. The Government may consider introducing a bill that, if passed, would amend the WSIA to extend mandatory workplace safety insurance to every independent operator, sole proprietor, partner in a partnership and executive officer of a corporation carrying on business in construction. Mandatory coverage would not be extended to “handypersons” doing work on a periodic or casual basis at a private residence. The bill would set out the potential liability as well as obligations on the “principal” (i.e., the person who engages a contractor or subcontractor to do construction work). The principal may be liable for the payment obligations of the contractors and subcontractors who perform work for the principal - unless he or she directly engages the contractor or subcontractor and complies with the obligation to obtain proof of the contractor’s/subcontractor's registration and compliance with payment obligations under the WSIA. The proof required would be a clearance certificate issued by the WSIB showing that the contractor or subcontractor has registered and complied with the payment obligations under the WSIA. The certificate would need to be kept for at least three years. The potential liability and obligations set out in the paragraph above would not apply if the construction work relates only to a private residence that is occupied or will be occupied by the person who hires a contractor to do construction work (e.g. a homeowner) or his or her family members. The bill would create additional offences for failure to comply with these obligations as well as other existing obligations relating to the payment of premiums. The bill would also provide regulation-making authority to require employers in construction to provide the WSIB with detailed information about their workers. This would provide for the establishment of a ‘named insured’ registration system to support implementation and enforcement of mandatory coverage in construction. A ‘named insured’ system would require all persons working in construction to be identified by name to the WSIB , either as a worker on an employer’s payroll or as an independent operator with the WSIB, and to have an approved identification card available for inspection when at work.2 Irrebutable Presumption for fire fighters consultation The Minister of Labour announced in the Legislature on May 3, 2006, a comprehensive review of current workplace compensation policies for firefighters battling cancer. This will include a review of the most up-to-date scientific information available. Parliamentary Assistant for Labour Mario Racco will lead the review process, meeting with the Workplace Safety and Insurance Board (WSIB), firefighter representatives and the Fire Service Health and Safety Advisory Committee.3 * Michael Zacks, Ministry of Labour, (416) 314-8735, Michael.zacks@mol.gov.on.ca. 1 http://www.labour.gov.on.ca/english/news/2006/06-44.html 2 http://www.labour.gov.on.ca/english/about/consultation/06_wsia/background.html 3 http://www.labour.gov.on.ca/english/index.html; http://www.ontla.on.ca/hansard/house_debates/38_parl/Session2/L070A.htm#P473_99957 Taking the Pulse of Ontario’s Administrative Justice System - April 20, 2006Alec Farquhar* Co-Chairs: Panel: Raj Anand introduced the key issues for the session. There have been various policy reviews by government over the years. More recently, the Administrative Justice Working Group has recommended that there needs to be reform of the appointments process, particularly for adjudicative tribunals. The focus is an open, transparent and merit based appointments process. A number of key elements have been identified: regular postings of opportunities, public advertising of chair positions, competitive process led by the tribunal Chair, appointments and re-appointments pursuant to the recommendation of the Chair, standard duration of appointments and statutory entrenchment of the various elements of the process. We will talk tonight about the progress made and not made by the current government, and also use the tribunal appointments process as a jumping off point for wider issues. Remuneration and tenure are key issues. Others are the relationship of the Chair and tribunal to Ministers, qualifications for appointment and the extent to which the recruitment and re-appointment decisions are actually tied to the true needs of the tribunal. We must also think more broadly about the quality of decision making and the accessibility of tribunals to those who need to use them. This includes government funding for tribunals. This is a vital issue. Administrative tribunals are where many in Ontario seek justice. Courts have high expectations of these tribunals and generally defer to them. There are some key relevant court decisions coming down soon. For tonight, we will be asking: How well are we doing? Has significant progress been made? What developments are underway? What does the future hold? Ian Strachan – Ian provided the perspective of the tribunals and of SOAR. Basically, there is good news and bad news. The good news is the prospect of an improved appointments process. For WSIAT, the appointments process has improved significantly from that under the previous government. The bad news involves OIC remuneration. This is a key issue. It has been 17 years since most OICs have seen an increase in their remuneration. This has been exacerbated by the recent settlement with the government lawyers, which widens the gap. Most of the WSIAT Vice-Chairs are lawyers. They are highly qualified and experienced. This has a demoralizing effect on Vice-Chairs. This comes at a time when the OICs are being asked to take on a heavier caseload involving more complex appeals. The WSIAT has been having more and more trouble attracting qualified appointees. For example, there have been two vacancies now for over two years for bi-lingual worker and employer side members. There is now only one part-time bilingual member for workers and one for employers. If the quality and the expertise erode, this will threaten the quality of justice. There is now an Agency Review Group headed by Debra Roberts, the Director of the Public Appointments Secretariat. It is looking at remuneration and other issues. On the appointment front, we are moving toward a merit based appointment process. SOAR’s recommendation is to entrench this process in legislation. This would make it difficult for a future government to reinstate a patronage system. There has been a major positive shift with Labour Ministers Bentley and Peters. They have supported the WSIAT’s approach, which includes an examination and an interview resulting in a merit-based process. When we have people of the quality of Bill Flanagan, current Dean of Law of Queen’s, and David Mullan, being appointed to WSIAT, everyone can see the positive results of a merit-based process. We need to commit strongly as a system to such a merit-based process. SOAR calls for a merit based system set out in legislation, with a strong role for the Chair. The Agency Review Report will hopefully support a merit based approach, with a two year initial term, with longer terms following. There may be consideration of a cap on appointment duration, for example 10 years. SOAR argues strongly against this. SOAR would like to see an exception made to allow retention of the most competent and expert members on tribunals. Kathy Laird – Three years ago, legal clinics got together around appointments issues in response to a serious situation where, under the previous government, good tribunal members were not re-appointed while unqualified members were being appointed. The clinics supported a merit based approach. There was also the perception that stakeholder interests were not being given appropriate weight by some tribunal Chairs. There were no mechanisms to encourage stakeholder input. For example, there was no obligation to produce an annual report at the Social Benefits Tribunal or the Housing Tribunal. Neither tribunal published its decisions. This made it difficult to determine what these tribunals were actually doing. There was no input on rules and procedures, as there had previously been at many tribunals. The clinics began meeting with Liberal policy staff and elected members prior to the last election. Others were also meeting with the Liberals on these issues. Following the election, the clinics joined with others to form the Administrative Justice Working Group (AJWG). The AJWG has developed a position paper which has been presented to the government and has been supported in general by a number of key organizations. Much is at stake for vulnerable people appearing before tribunals – their housing and disability benefits. The current government has taken some significant positive steps, including moving to public advertisement of competitions for Chair appointments. However, the remuneration issue has been a problem. Administrative justice issues are also in the media again, including the human rights process and the health practitioner discipline system. The Housing Tribunal has issued a decision stating that the lack of funding for the tribunal was undermining the quality of justice at that tribunal. New legislation on the housing tribunal is expected soon. The Tribunal has established a stakeholder advisory committee and as a result, progress can be expected in terms of making the rules and procedures more appropriate for the communities served by the Tribunal. Remuneration and budget are still major issues. The administrative justice changes so far are somewhat piecemeal. We need a more systemic approach. We have seen better appointments overall. But the Social Benefits and Housing Tribunal salaries are over $20,000 less than WSIAT and in turn WSIAT is much less than the OLRB. This means that it is very difficult to find qualified appointees. This sends the message that the matters adjudicated by these tribunals aren’t really very important. The Tranchemontagne/Werbeski decision comes down on April 21 from the Supreme Court of Canada. This will determine whether a tribunal can apply the human rights code to proceedings before it, including to suspend the application of a section of its own legislation that is contrary to the Code. If the Court determines that this is possible, it will further heighten the need for expert adjudicators. Also, this is vital in terms of access of vulnerable populations to justice. You must have adjudicators who are qualified and knowledgeable to hear Charter and Code issues which arise in other fora. BC has barred Charter jurisdiction for most of its tribunals. Quebec is going in the opposite direction. David Brady – David stated that he comes at this issue from the perspective of representing employers who use the administrative justice system. As with other stakeholders which turn to this justice system, the fundamental issue is whether the appointees are worthy of respect. Employment law lawyers spend most of their time before boards and tribunals, or adjudicators. Sometimes we go to the Divisional Court or Court of Appeal. When these tribunal decisions arrive in these courts, there is significant protection for the decisions made. The test for review is high. These are mostly final and binding decisions. This means that we need tribunals which will get it right. Quality is fundamental. If you do not have quality, you do not have justice. You need adjudicators who can analyze, write, be timely. In labour relations, the system is well funded. The arbitrators are well qualified and must get consensual appointments to succeed. You must earn the respect of both communities. But the model is built on institutions with solid resource bases. This is not the case in many boards and tribunals. Many tribunals do not have a strong institutional culture. Tribunals need to be well led and have resources. They need to create a body of law. It is hard to understand how a tribunal dealing with important issues would not have a body of law. A tribunal needs to have a library, computer support, resources for research, and to be able to create a body of law. This creates consistency, predictability. You need to have the supports for this kind of quality. If you don’t have the money and resources, you don’t have justice. You have lame duck, well-intentioned people who cannot solve problems. In fact, the tribunal is part of the problem. This is intolerable. What happens after tonight? Something should happen. Constituencies must take this issue and politicize it. We must try to press for change. The Admin Justice Working Group suggestions are common sense and should be pursued. There should be follow up. Discussion: What is SOAR doing?
Is the recent development in Supreme Court appointments going to have any impact?
What is the role of the Standing committee process?
Ron Ellis – we have many decades of failures by politicians and bureaucrats to bring meaningful reform. The absence of government presence in this meeting is significant. There is a recent decision of the Ontario Superior Court in which the government was ordered to establish a remuneration commission for deputy judges (“Small Claims Court”). This is of significant interest. There is a degree of pessimism of how this would apply to administrative justice tribunals. There is also the McKenzie case in BC. If so, an application to the court along these lines might succeed. It is difficult for OICs themselves to launch such a legal action. Can the OBA get active in such litigation? There is a precedent in Quebec. The political strategy just hasn’t succeeded. We need a litigation strategy.
Andrew Wray thanked the panellists. * Alec Farquhar, Ministry of Labour – Occupational Health & Safety Branch, (416) 326-7866, alec.farquhar@mol.gov.on.ca. Upcoming ProgramThursday, June 8, 2006 Sections Publications
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Section Executive 2005-2006Chair: Michael B. Johnston Past Chair: Michael Zacks Vice-Chair: Alexander W. Farquhar Secretary (Sections): Robert A. Boswell Newsletter Editor: Michael Zacks AGR Liaison: S. David Gorelle AGR Liaison: David Wilken CLE Liaison: Daniel S. Revington CLE Liaison: Stephen C. Roberts Technology Liaison: Leo J. Dillon Member-At-Large: Susan Ann Kelly Adams Member-At-Large: Suzanne Maria Dajczak Member-At-Large: Joseph K. Morrison Member-At-Large: Ann S. Somerville Member-At-Large: David Whitten Staff Liaison: Janet Green |
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