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In Canada, WCB is bound by strict not absolute law rulings to protect the worker!

Martin (Nova Scotia Compensation Board v. Martin, [2003] 2 S.C.R. 504, paragraph 28), the Supreme Court of Canada confirmed that any government tribunal or agency with the power to determine questions of law has the jurisdiction and duty to determine the constitutional validity of any legislative provision it is empowered to apply.

This is so, the Court said, because the “invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s.52(1) of the Constitution Act .” [the section that establishes the Constitution “as the supreme law of Canada”] and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” and is to be “disregarded”.

Constitutional invalidity “inheres in the legislation from the time of its enactment”, the Court held, and just as courts are obliged not to apply constitutionally invalid laws, “the same obligation applies to every level and branch of government, including the administrative organs of the state”.

The WSIB is an “administrative organ of the state” that is “endowed”, to use the Martin Court’s words, “with the power to consider questions of law” – in its case, questions of law governing an injured worker’s entitlement to benefits. In that role it has the same obligation as the Workplace Safety and Insurance Appeals Tribunal to not apply legislative provisions that are constitutionally invalid.

Alberta is reviewing it workers’ compensation system for the first time in 15 years. A few weeks ago, Merit Contractors started a campaign with the basic message is that business is opposed to increased operating costs:

The government’s intended direction is clear: it wants to make it easier to file claims and expand the number of claims that are covered. As a result, WCB premiums are inevitably going to go up.

Together with the carbon tax and minimum wage hike, this is yet another cost for small businesses at a time when they simply can’t afford it. Some will be able to bear the burden, but others won’t.

Business owners who have spent years building their dream may watch it slip away. Ordinary Albertans will suffer too, with even more people losing their jobs.

This campaign is pretty typical of the corporate-conservative pushback against the NDs. Whether such a campaign resonates with employers is an open question. It paints employers as more concerned with their bottom line than their employees’ health and well-being. Supporting this campaign doesn’t exactly scream “we’re an employer of choice”.

Last month, the review panel released an interim progress report. Its consultation has generated about 2000(!) responses so far and a final report is due in April. A key theme the committee has flagged is a purported shift away from the Meredith principles and towards an insurance model as a source of a number of difficulties. That sounds quite abstract and bloodless, until you read down a few pages and get to this paragraph (I’ve broken the text up a bit to facilitate reading–it is worth your time).

There are people who describe their experiences with the WCB claims process in positive terms. Many others describe their experiences in very negative terms, such as “disrespectful”, “angering”, “frustrating” and even “dehumanizing”.

A widespread view is that the WCB operates its claims process in a way that presumes injured workers are lying about their injuries or illnesses, and looks for any possible reason to deny an injured worker’s claim, lower their compensation, refuse their requests and “cut them off”.

Some feel the WCB deliberately makes its process complex so that injured workers will abandon their claims out of frustration. For example, it is said the WCB will demand injured workers obtain information (such as notes from physicians) to “prove” their condition and its relationship to their employment, only to be told the information they have provided is “still not good enough”.

Others feel the WCB’s culture is focused on saving money rather than compensating injured workers. They say this is evident in the way some WCB personnel display rudeness and a lack of compassion when communicating with injured workers and managing their claims.

Still others characterize the WCB as a bully, saying it abuses its authority by routinely threatening to terminate workers’ benefits if they dare to question its demands. Compounding this, it is said that the WCB’s decision- making process is not clear to people, which further fuels distrust, anger and frustration. (p.7)

The committee also flagged presumptive status, an employer obligation to accommodate returning workers in a meaningful way, and the WCB’s approach to return-to-work as issues requiring more attention. On RTW:

Sometimes workers are assessed as ready to return even though they do not personally feel ready, or their personal physician says they are not ready, or the employer believes they are not ready. Some people say that the WCB ignores such concerns and deems the worker fit to return anyway.

This forces the worker to make a choice between losing their benefits or returning to the workforce and risking their health; and it forces the employer to re-integrate a worker whom they believe should not be there and might pose a safety risk to others. (p.10)

On benefits and premiums, the committee notes:

The current insurable earnings cap may need review.

Earnings might be calculated more inclusively.

The process by which the WCB deems workers to be earning money (and thus cuts their benefits) may be problematic.

WCB premium incentive schemes may drive undesirable employer behaviour.

These topics will likely raise some eyebrows at Merit. That said, I don’t think that Merit can reasonably claim WCB premiums will be going up if even if radical changes were implemented.

I say this because the WCB annually rebates hundreds of millions of dollars to employers (e.g., $507m in 2015 and $467m in 2016) based on accumulated surpluses. Employers may not get a big surplus cheque each year, but premiums will likely stay stable.

Overall, I thought the interim report was very even-handed. It gave voice to a number of important worker criticisms of how the WCB operates that the Tories managed to stifle for the last 20 years. It delved into systemic issues that reinforce the insurance culture of the WCB (premium schemes). Yet it makes no promises and draws no conclusions as the consultation is still going on.

Base upon the Supreme Court Ruling!

The Board is on notice that the constitutional validity of the legislative provisions in the WSIA that exclude workers with mental stress injuries from benefits unless the mental stress is “an acute reaction to a sudden and unexpected traumatic event” is an issue.

That notice comes in the daily submissions to it on behalf of benefit-seeking workers suffering from work-related mental health problems not caused by an acute reaction to a sudden and unexpected workplace event and most significantly in the form of three decisions of the Workplace Safety and Insurance Appeals Tribunal. These are the decisions that allowed workers’ appeals from the Board’s decisions to deny them benefits for chronic workplace stress on the grounds that the legislative provisions on which the Board relied to justify those decisions are constitutionally invalid.

The first of these Tribunal decisions followed a full hearing in which Ontario’s Attorney General participated in a vigorous defence of the validity of these provisions. The decision, published in 2014, is a unanimous decision of a tripartite panel in which both the worker and the employer panel members agreed with the panel chair that the Attorney General’s arguments were not persuasive and that the provisions are clearly in breach of the Charter.

The decision (No. 2157/09) was written by one of the most respected of the Tribunal’s adjudicators and displays a quality of analysis, legal knowledge and constitutional expertise that would do credit to the Supreme Court of Canada itself.

It may be found at:

https://www.canlii.org/en/on/onwsiat/doc/2014/2014onwsiat938/2014onwsiat938.

html?autocompleteStr=2157&autocompletePos=1)

In my view, any constitutional law lawyer reading that decision will be persuaded of its correctness. Moreover, the government itself must be taken to have been of the same mind since it elected not to challenge the decision in the courts; a challenge that governments who lose constitutional cases routinely bring.

The Tribunal’s 2014 decision has been followed in two subsequent Tribunal cases in neither of which the Attorney General elected to contest the issue any further. See WSIAT decisions No. 1945/10 (2015) and No. 665/10 (2016).

For the Board to take the position, as its chief operating officer does in his letter, that in these circumstances the Board has no option but to continue to apply the impugned provisions until the government chooses to amend the Act is to ignore its legal obligations as defined by the Supreme Court in Martin, as well as its duties arising from its stewardship of the workers’ compensation system.

That stewardship role requires it to respect and protect not only the interests of employers but also the interests of injured workers. The Board fails in that responsibility when it continues to enforce legislative provisions which the Tribunal has found to be constitutionally invalid, thereby consigning large numbers of mentally ill workers to many years of living without benefits of which they are in desparate need and to which they are entitled, for reasons the Board knows will not withstand scrutiny on appeal.

Turning a blind eye is neither a lawful nor a respectable option.

In the WSIB’s system of adjudication, the Board’s adjudicators’ decisions are governed by the instructions given to them by the Board’s management concerning the meaning of the various provisions of the WSIA. These interpretation-based instructions are found for the most part in the Board’s published operational policies, and the instructions that are considered to be of strategic importance are, we understand, typically approved by the Board of Directors. Thus, on important matters, the Board’s adjudicative function with respect to the interpretation of the Act is ultimately exercised by the Board of Directors.

In these circumstances, the Board of Directors is not entitled to ignore Tribunal decisions that hold the impugned legislative provisions to be constitutionally invalid. In my view, the law as laid down in Martin requires the Board of Directors itself to address the constitutional question by reviewing and considering the merits of the Tribunal decisions.

And if it comes to the conclusion that the Tribunal has got it wrong, to publish its reasons for that view. At that point the matter could be taken to the courts and this issue resolved in a rational and responsible manner.

On the other hand, if the Board of Directors concluded that the Tribunal’s decisions were correct, meritorious chronic stress claims would then be granted, pending any legislative amendments the government might choose to enact.

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