During the first week of September, the United Nations Committee on the Rights of Persons with Disabilities (the “Committee”) reviewed Canada’s compliance with the Convention of the Rights of Persons with Disabilities (”CPRD”). As part of the review, the Ontario Network of Injured Workers’ Groups (“ONIWG”) made submissions about how the practice of income deeming may violate the human rights of injured workers.
What is deeming?
Canadian workers’ compensation boards, including the Workplace Safety and Insurance Board (the “WSIB” or “Board”) in Ontario, use the practice of income deeming to assume employment income and reduce workers’ compensation benefits. Typically, workers with permanent injuries are entitled to retraining if they cannot return to their pre-injury employment. However, following retraining, the Board can deem the worker to be capable of working in a “suitable occupation”, in accordance with WSIB Policy Document 19-03-03 and sections 42, 43 and 53 of the Workplace Safety and Insurance Act, 1997 (the “Act”).
ONIWG’s challenge against income deeming
In its submissions, ONIWG argues that that income deeming stigmatizes and marginalizes people with disabilities and, as a result, infringes Articles 4, 8, and 28 of the CRPD.
First, ONIWG argues that, as a result of conditions that may suspend benefit entitlement, Canadian workers’ compensation schemes contravene Article 4 of the CRPD. In particular, ONIWG alleges that these conditions fail to protect and promote the rights of people with work-related disabilities as many workers often cannot find employment following complex and permanently disabling work-related injuries.
As an example, only 27 per cent of injured workers with English language barriers found a job following their completion of a WSIB work transition (WT) program. Despite being unable to find employment, these workers’ loss of earnings (LOE) benefits are reduced by an amount equal to the earnings that they are deemed able to earn in a suitable occupation.