Wednesday 6 December 1995
An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act, 1995,
Bill 15, Mrs Witmer / Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé
et la sécurité au travail, projet de loi 15, Mme Witmer
Richmond Hill Chamber of Commerce
Jim Chwartacky, president
Jason Mandlowitz, national manager of workers' compensation services, Crawford and Co.
Beyond Ability International
Gerald Parker, president
Union of Needletrades, Industrial and Textile Employees, Ontario Joint Council
Pat Sullivan, Ontario director
Jonathan Eaton, researcher, Canadian office
Canadian Union of Public Employees, WCB Committee
Bill Harford, chair
Greg Letwin, member
Ontario Physiotherapy Association
Kenneth Higgs, president
Retail Wholesale Canada--USWA
Dave McCormick, worker representative
South Lake Simcoe Association for Injured Workers
David Stephenson, president
Canadian Auto Workers, Local 4457
Patty Harrington, representative
Canadian Auto Workers, Local 303
John Sommerville, chair, WCB committee
Continued from overleaf
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Gilchrist, Steve (Scarborough East / -Est PC)
Vice-Chair / Vice-Président: Fisher, Barb (Bruce PC)
*Baird, John R. (Nepean PC)
Carroll, Jack (Chatham-Kent PC)
*Christopherson, David (Hamilton Centre ND)
Chudleigh, Ted (Halton North / -Nord PC)
*Churley, Marilyn (Riverdale ND)
*Duncan, Dwight (Windsor-Walkerville L)
*Fisher, Barb (Bruce PC)
*Gilchrist, Steve (Scarborough East / -Est PC)
*Hoy, Pat (Essex-Kent L)
*Lalonde, Jean-Marc (Prescott and Russell / Prescott et Russell L)
*Maves, Bart (Niagara Falls PC)
*Murdoch, Bill (Grey-Owen Sound PC)
*Ouellette, Jerry J. (Oshawa PC)
Tascona, Joseph N. (Simcoe Centre PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Arnott, Ted (Wellington PC) for Mr Tascona
Hardeman, Ernie (Oxford PC) for Mr Chudleigh
Wettlaufer, Wayne (Kitchener PC) for Mr Carroll
Clerk / Greffier: Arnott, Douglas
Staff / Personnel:
McLellan, Ray, research officer, Legislative Research Service
The committee met at 0913 in committee room 2.
WORKERS' COMPENSATION AND OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT, 1995 / LOI DE 1995 MODIFIANT LA LOI SUR LES ACCIDENTS DU TRAVAIL ET LA LOI SUR LA SANTÉ ET LA SÉCURITÉ AU TRAVAIL
Consideration of Bill 15, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act / Projet de loi 15, Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail.
The Vice-Chair (Mrs Barbara Fisher): Good morning. We reconvene once again, and once again I do apologize for not being able to start on time.
We welcome you to the hearings of the standing committee on resources development as it relates to Bill 15. We would like to advise you that, first of all for the sake of the members, there has been a little bit of an agenda adjustment this morning. The 9:45 is still vacant. It is one that hasn't been filled and so we're not crunched especially for time now, and the 10 o'clock, to the best of our knowledge, is cancelled. We did suggest that somebody else could attend and they haven't signified yet that they're going to do that, so as it stands right now that's also a vacant time.
Mr Dwight Duncan (Windsor-Walkerville): Are any of the union groups coming today?
The Vice-Chair: Well, right now the 9:45 and 10 are not. There are other union groups, as you can see on the rest of the agenda here, but they've --
Mr Duncan: You haven't been advised of any kind of boycott, though?
The Vice-Chair: No, not that we know of.
RICHMOND HILL CHAMBER OF COMMERCE
The Vice-Chair: Welcome to our hearing process. Just so you'll understand where we stand at the beginning, you will be given a 15-minute time frame in which to make your position known. That can be done in a combination of ways. It can be full presentation or you can include in that also your question and answer period. However, you will be limited to a 15-minute time frame.
Starting of questions today comes from the third party. If they're not here, it moves in rotation. They may attend before the end of your presentation and opening of the question and answer period. They would be offered the opportunity to start, and then it would go to the government side and then to the opposition party.
Without any further comments, I'd like you to introduce yourselves, please, for the sake of the committee and for Hansard's sake, and go from there.
Mr Jim Chwartacky: Good morning. First of all, my name is Jim Chwartacky. I'm the president of the Richmond Hill Chamber of Commerce. With me are Jason Mandlowitz, who is national manager of workers' compensation services for Crawford and Co. Jason's on my left, and on my right is Barbara Scollick. Barbara is the general manager of the Richmond Hill chamber.
You should have in front of you our submission, and I'm going to walk you through it. The Richmond Hill Chamber of Commerce is a business association representing over 500 employers of various sizes and sectors in the Richmond Hill area.
Like the Ontario Chamber of Commerce, we are pleased to participate in this review of Bill 15. Our members have been concerned about workers' compensation issues for quite some time and fully support our involvement in the consultation process which has led to short-term reform of WCB through Bill 15 and medium-term reform through the Jackson review. We intend to continue our involvement in this issue as the government presses ahead with much-needed changes to the workers' compensation system in Ontario.
The major stakeholders in workers' compensation have agreed for many years that reform to the system is absolutely essential. Many of the areas covered by Bill 15 address this need: governance, financial accountability, fraud and revenue loss.
First of all on governance: Like the Ontario Chamber of Commerce, we support shifting from a bipartite to multi-stakeholder board of directors. It is critical that a WCB board of directors be composed of the best available individuals whose skills and knowledge, when taken together, will allow for a combination of strategic planning and macropolicymaking. We must move beyond the bipartite WCB model, which pitted vested interests. When appointing directors, consideration should be given to individuals who have the appropriate experience with the issues, for example actuarial and insurance backgrounds, as well as previous experience working on boards of directors. It is important to make the distinction that the directors are from their respective communities and not representative of them.
We support subsection 58(2) requiring the board of directors to act in a financially responsible and accountable manner in exercising its powers and performing its duties. The board of directors will therefore have responsibility for combatting the financial crisis which faces WCB.
We cannot stress enough how concerned our members are about the financial sustainability of the WCB and the annual costs which it imposes on them. For example, when the 1995 assessment rate was set at $3 per $100 of payroll, it was the second-highest rate in the country, and without the unfunded liability would have been $2.12.
We feel that in order to address both financial and administrative issues, the board of directors must be given final say within the workers' compensation model. Therefore, we recommend that this be reflected in Bill 15 in two ways. First, Bill 15 should clearly provide the WCB board of directors with final authority, that is, final say in workers' compensation. Secondly, Bill 15 should guarantee the independence of the WCB from government.
We support the provision in Bill 15 to strengthen the memorandum of understanding -- the MOU -- between the WCB and the Minister of Labour. This will go far in ensuring greater accountability at the WCB.
We believe that the MOU is an important first step but does not go far enough. Accountability can be enhanced by involving stakeholders in a dynamic consultation process with the WCB system. For example, within the WCB an effort was undertaken in 1994 to formulate a policy agenda which would establish the policy issues to be reviewed for the next year. This was a very positive initiative and we recommend it be added to the statutory approach in Bill 15 so that it can be undertaken on an annual basis. A second mechanism to further this accountability would be to establish an external review body mandated to review the WCB concurrent with the termination of an MOU.
We are particularly concerned by the use of the term "material change" in section 22.1 of the bill because the term is undefined and its application would be based entirely on the discretion of the WCB. We recommend that this issue be the subject of a consultation process with the stakeholders, who would assist the WCB in defining the term and determining appropriate policy.
However, we do not support the Bill 15 provision which requires employer registration within 10 days. We recommend this be amended to 30 days to be consistent with the current act.
On fraud and revenue loss: Bill 15 contains significant changes to the penalty provisions in the act. While we support the principle of toughening the approach to non-compliance, and particularly to recovery of overpayments, we are concerned that a maximum employer penalty of $100,000 is not practical. If the intent of Bill 15 is to penalize non-registrants, this will certainly guarantee a further problem. If an employer fails to register when a slighter penalty exists, what provision will there be for an employer to come forward voluntarily? If the WCB had the capability to find the non-compliant employer in the first place, then these penalties would be unnecessary.
We feel that a more flexible approach is needed and recommend that, to encourage all possible registration and maximization of revenue for the WCB, a one-time employer amnesty be adopted for a six-month duration period. This initiative would require communication by the WCB and upon its conclusion, the provisions of Bill 15 could apply.
This report is respectfully submitted by the Richmond Hill chamber.
The Vice-Chair: Thank you very much. Mr Christopherson, you will have the opportunity for the first question here on the presentation that's just finished.
Mr David Christopherson (Hamilton Centre): Pass.
The Vice-Chair: We'll go to the government side then for the first question. Mr Maves.
Mr Bart Maves (Niagara Falls): We've had some presenters say that the unfunded liability is not a problem; others have said that it is a problem. I'm assuming you believe that it is. On page 3 -- I'm interested in the end of the first paragraph -- you say that without the unfunded liability it would have been $2.12. Could you explain those numbers and explain why it's such a problem in your eyes?
Mr Jason Mandlowitz: In establishing the average schedule 1 assessment rate for 1995, the board set it at $3 per $100 of payroll. Assessment rates are made up of three components: the cost, in-year, of new claims, so current and future costs of claims in a year; overhead; and unfunded liability. In 1995, 88 cents of the $3 target rate for schedule 1 was attributed to the unfunded liability, and that's how we get to $2.12.
In addition to its impact on assessment rates, the unfunded liability has a negative impact on experience rating. It is a significant component of the expected cost factor, and so long as it reduces the expected cost factor for NEER purposes, it will dampen the incentive for return to work and re-employment that has earmarked NEER over the years and made experience rating so successful. So there's a double negative impact for the unfunded --
Mr Maves: There have also been some statistics put forward about a large number of companies that have not paid their premiums, and the WCB's had to write these bad debts off. I'm sorry to ask this of you. I would have liked to ask it of some other perhaps more umbrella groups, but unfortunately you don't always get to ask the questions you want to ask of the groups that are in front of you. I'm curious as to why you believe so many employers seem to default on these payments. Are a lot of them just going out of business? What in your eyes would be the reason for so many of these?
Mr Chwartacky: That would be part of it. I think there are several components. Through my personal experience -- I'm a public accountant -- I have run across situations of people with their backs up against the wall and their belief that it's just unfair, that enough is enough. It's a catch-22 thing. They have to meet payrolls or meet current expenses to buy supplies etc, and things like that happen, unfortunately. I'm not saying it's right, but it does happen; and to some extent, which is mentioned at the end of our proposal, ignorance of the registration process or maybe wilful non-compliance, I'm not sure, but maybe just ignorance of startup organizations understanding when and how to register because of complexities in various government things they have to register for.
Mr Maves: Have you seen an increase in the propensity to default during the recession?
The Vice-Chair: We should limit it to two questions. I'm sorry for cutting you off, but in fairness to others, we should proceed now to Mr Duncan, please.
Mr Duncan: Good morning and thank you for your presentation. I was curious about your comments. You reflected something that we had expressed a concern about in the Legislature, and that's the whole notion of political involvement in the affairs of the WCB.
You stated in your presentation that you recommend that Bill 15 clearly provide the board with final authority and that it guarantee the independence of the WCB from the government. Then you went on to endorse the memorandum of understanding clause. I see some contradiction there. I refer you to subsection 13(1) of Bill 15, which reads, "Every five years, the board and the minister shall enter into a memorandum of understanding containing only such terms as may be directed by the minister." Then further, subsection 13(2) deals with the requirements of reporting to the minister. Ultimately, I read this statute, particularly the issues around the memorandum of understanding, as potentially bringing government and the board even closer together.
I wonder how you reconcile that opinion. I would suspect the business community's concerns may not be as strong today, given the current government, but would you still feel as comfortable with the memorandum of understanding clause if you had a government that was less sympathetic to the business community?
Mr Mandlowitz: The answer to the last question is no. I think our job in this building and the job of public policymaking is at all times to enter into the design of the best possible workers' compensation system, politics aside, although politics is a major part of it, obviously. That's where I separate the two comments that you pulled from our presentation.
I'd suggest that the memorandum of understanding has much to do with the issue of public accountability and it is absolutely prudent for the Legislature and the Minister of Labour, who reports to the Legislature, to hold the organization accountable. That's what this is about. This is a forum for public accountability, but this is not necessarily a forum for independence of administration, and that's where I make the separation. When we want politics removed from the WCB, we believe that the board of directors in its new format should have responsibility for administration. The legislative process has responsibility for public accountability.
The Vice-Chair: A very short one, Dwight.
Mr Duncan: Supplementary, then. I understand where you're coming from. I guess what I'm trying to get at in terms of your views -- because frankly I agree with what you're saying, in a perfect world. But if you look at subsection 13(2.2), it states:
"The memorandum of understanding may address the following matters:
"1. Any direction by the minister about programs to be reviewed under subsection 77(2).
"2. Any matter proposed by the board and agreed to by the minister.
"3. Any other matter the minister considers appropriate."
I just put myself in the current minister's shoes. These wacko guys on the opposition stand up and demand that the minister use her authority that's contained in the memorandum of understanding to investigate this or that. My fear is that we open the door to a lot more political interference in the administration of the affairs of the WCB and that whatever gains we may make by moving to a multi-stakeholder model with an independent board could be lost because of that. I'd like to hear your views on that.
The Vice-Chair: I'm sorry, we're not going to be able to do that. We've expired our time. I guess if the questions are short, the answers can be longer.
Mr Duncan: What about more time for hearings?
The Vice-Chair: With that, I do appreciate your being here this morning and your contribution to the process. Again, sorry for the delay. Thank you very much for coming.
BEYOND ABILITY INTERNATIONAL
The Vice-Chair: I would appreciate very much if the next group came forward: Gerald Parker.
Mr Gerald Parker: Good morning, ladies and gentlemen, those honourable members of the committee. My name is Gerald Parker. I'm the president of Beyond Ability International, which is a company that provides advocacy training and education on accessibility. We also provide consultancy and publications for the accessible tourism industry in Canada and internationally at large for the disabled community.
I am an injured worker, a student injured worker, who back in 1987 was injured on the job while having to undertake a full-time job because of economic circumstances. Due to the circumstances that prevailed from that, I have had three major back operations. I returned back to school under my own resources to have to undertake the complete undermining of the Workers' Compensation Board in its excessive ineptitude. I take that and I say that from not only a personal perspective, but that of a political scientist.
During my studies, I undertook quite avidly to research the Workers' Compensation Board in Ontario specifically. I have been present before the standing committee on resources development for Bill 165 and also the Royal Commission on Workers' Compensation. Today I will tell you that I am a proud and pragmatic Canadian who knows we are a nation that resolves political and social injustices and reconciles divisiveness, not encourages it. We are not all equal in ability or resources.
I have presented before this and told you my views so I will not elaborate on them any further because they are a matter of public record.
Because I have a specialized and personal knowledge of the board and the act, I will not -- repeat, will not -- avail this technical and practical expertise to this committee. You ask, why not? In the province of Ontario, nothing is for free any more, nor is my time or energy. I'm not getting paid like the board of the chamber of commerce. I'm here on my own time, free will, energy and honourable intentions. If you'd like to speak to me after the fact, I'd be more than willing to sit down for as long as you so choose to go over my technical expertise of this bill, and I will send you a bill for it.
I will give you a brief synopsis of my experience with the board. Like I said, in 1987 I was an injured worker, a student worker, a full-time job because of economic circumstances. I've had horrendous treatment. I've been cut off literally 12 hours after coming out of a major back operation that kept me in bed for the entire summer. I've been sent to sociologists who have tried to tell me that my fractured vertebra was in my head -- a sociologist sent by the board. I undertook my own rehabilitation by myself under my own recourse at the Canadian Back Institute. This was despite the board and at my own cost.
The systematic methods of attrition continue to just simply continue. There are delays. There are barriers and there is misinformation and subsequent cutoff because of it. Accountability is a very, very important issue. If you want to focus on something, bring the board to be accountable as a schedule 4 entity. They, as perhaps was referred to you before by a prior presenter -- their political influence within the board.
I am not a union member or a party of a union. I was. My union never helped me, never even placed a phone call to me when I was injured, did not give a hoot about my family and my wellbeing. I am not a person in an executive position, or at that time I wasn't a businessperson. I was simply a guy trying to get through school to make this future a little brighter for us all. Today I am doing that despite the odds.
If we are going to undertake and deal with this honourably, to deal with the potential that our future has to offer in the stock of our youth, we have to understand that economic circumstances require us to work. We are not back in the 1950s when you can stay home until the age of 23 and live quite comfortably. We have to pay our own tuition and, as the budget referred to last week, 20% more. It's increasingly more difficult for us to do that, so we have to work.
What happens when a student worker is injured on the job? They don't have the support of the union; they don't have the political or economic resources to take a form of address. So what happens? We're left out in the cold. I was forced on to welfare. If you remove a person from a WCB docket to welfare, you're simply offsetting the cost. That is a position the Workers' Compensation Board does all the time, and I say that personally, I say that academically, because I spoke with over 500 people during the course of my research.
There was a comment made, and this has been a continuous and consistent comment made, that the business community is homogeneous. We're not. Some of us care. Some of us care about the wellbeing of our employees. I, for one, now have a business where we are bringing in $25 million of wholesale tourism into this region: $25 million. I care about my people who work for me, because they're valuable. I could not be prosperous without them. They have expertise and they are valuable to me. They are not a commodity, they are people. They are not numbers, they are people.
I know the cost of doing business in Ontario. I know the benefits of doing business in Ontario. I have chosen to do business in Ontario, and I assume those costs and benefits. I do not whine about them. I do not say, "Oh, well, if I don't have liability coverage for my workers and they're going to sue me, I'm going to lose the entire business that I've worked so very hard and long to get." But, no, I pay my premiums, and thankfully so, because I know that without those premiums I would be out of business in a second, as most of us would be in this libellous age of ours.
I want to reiterate that the Workers' Compensation Act and in its conceptual basis is a quid pro quo relationship. To extract the tort law out of the injured worker and the workplace, you have to give them the reasonable rehabilitation and the reasonable cost of being able to survive. That is the quid pro quo. You cannot lose sight of that. This is not a cost-benefit for business. This is a matter of conducting business and having a healthy and active workforce in this province. I encourage that perspective because it is a realistic and pragmatic one. It is not one vested in any political basis. It is simply one that says: "This is the reality. We want a workforce, we want a healthy workforce, we want to have good relationships within that workforce, because they all add to productivity. We want productivity, because productivity turns our economic turbines, which makes us all happy, our families happy and well fed." Without that, we have a certain level of injustice, and I don't want to tell you -- I am not left-leaning. I don't want to tell you that. I'm a pragmatist.
To finish off, if you were to remove the tort from the relationship, from the act, I tell you I would have been the first person to sue my employer because of their negligence. I would be certainly a lot richer than what I am today. I would not be earning 90% of minimum wage in 1987, for God's sake. Is that what my potential is worth to the board, 90% of minimum wage based on a 1987 index? I'm a student, I'm not a worker, and no disrespect to those who have to be part of our economy to provide that manual work, but those people, for the better part, are less educated, less resourceful, less able to articulate themselves before boards or committees such as this, and they're left out to dry.
The unions are not necessarily there to help them. There are two ends of the equation here -- business interests, union interests -- and everybody in between is left out to dry. Let's do something about that. Let's make people accountable. Let's say when a doctor drags a patient across a room, bends him over four different ways, causes that person to be in pain and in severe pain for more than a week, that by any stretch of the imagination is malpractice. Why would the board be exempt from that? It simply boggles my imagination why as a schedule 4 entity you're looking to give them less, or some may purport to give them less -- or more autonomy. We cannot accept that.
Please understand that I am a businessperson. I care about the people who work for me and I care about those who are around me, because I know that if a person beside me is not performing to their potential, then we all, as a group, are not doing as such.
I understand the benefits and costs of continuing business in this province. I've made that choice, as every other businessperson has. Live with that decision. Don't cry about it, don't whine about it. Don't say, "Lower my premiums; I don't want to be responsible for my workplace activities." Don't do that. Make them accountable. Say, "We want healthy, safe workplaces for people to live in and enjoy and produce this economy, to grow and to prosper so that we can all live a healthy and happy life."
Mr Ted Arnott (Wellington): Mr Parker, thank you very much for your presentation. I don't think I have any specific questions, but you certainly offer a unique perspective and have obviously experienced considerable difficulty dealing with the board. We certainly appreciate your coming in today and your interest in talking to us. Thank you very much once again.
Mr John R. Baird (Nepean): I have two questions. You mentioned the way the WCB, for lack of a better word, administratively handled your case. What was your experience there and what would you see as room for improvement?
Mr Parker: I may preface my remarks by saying it's not just how they handled my case, okay? When you start talking about people -- and I will tell you, in speaking with the amount of people, you start looking at the degree of desperation, the marital breakups, the dissolution of relationships, the forfeiture of mortgages etc etc. It's not just me, it's many, many other people. I take my experience and I try to crystallize that.
More specifically, though, I had a fractured vertebra. There were X-rays that clearly diagnosed that. It had been diagnosed for two and half years. I was forced to be in chronic, continual, the absolute most unbearable pain, if you can imagine part of your spine sitting there grinding every time you moved for two and half years. You know what the board's response to that was? It was to send me to a sociologist who told me my fractured vertebra was in my head -- a sociologist, not even a medical professional.
Despite having the X-rays and pointing the X-rays out to this individual, I was told that I had a bad attitude. Now, I may come across as somewhat abrasive sometimes, and I apologize for that, but it is my style and I don't take no and I will not take, pardon my language, any crap because of the situation that I've been forced through with the board. I thank you for that, I really do, because it's given me a level of independence and confidence to be able to stand up against people who otherwise don't care about anybody. You call up the board and they say, "Claim number?" I say, "No, the number that is assigned to the file of Gerald Parker is..." I am a name, I am a person; I am not a number. I am not an actuarial statement.
From that I found my own doctor, a very renowned orthopaedic surgeon, and we made the choice: "You are a student. You have to have surgery. That is the case." I said, "When can we have surgery?" He said, "Six months later, that's all we can book." I said, "Look, for purposes of refocusing the very excruciating pain that I'm suffering, my academics are the only way in which I can refocus that."
So I went back at my own cost, as I had always anticipated, and did not expect the board to pay a single dime of my tuition. However, I was cut off as soon as I went back to school on a modified basis. The end result of all this is that after four years of having medical recourse exhausted, I could have turned around to the board and said, "You're obligated to retrain me," and taken another three years to do that. But under my own recourse, my own motivations and my own moral ideals and principles, I paid for that. I undertook that and I took responsibility for myself. The board wasn't going to do that, nor did I expect it to do that. But I took responsibility for myself, to have what? To be cut off. Literally 12 hours after coming out of intensive care, to spend three hours completely sedated under morphine, trying to get through to a board that would not give me any answers. Red tape, red tape, red tape.
Systematic methods of attrition, if you'd like to know precisely, is the terminology that I utilize, because it certainly is. There are barriers, and so many people stumble over those barriers, you have less people; therefore, you have less of a docket to deal with -- attrition, and that's exactly what it was. I had the full medical credentials, the reason to be under the board's protection. And that is what the board is mandated to do, to protect my interests as an injured worker. That wasn't undertaken.
I was compromised, severely compromised. My marriage almost broke up, and I only give it to the fortitude of my wonderful wife, because I tell you, you put a person, a well-motivated individual with a great deal of energy, in a very, very desperate situation, in a corner, in a lot of pain, and they can't do anything.
Your group, your committee, is resources development. You are here to develop and to bring out the resources that are being squandered by the Workers' Compensation Board, not just from the workers' perspective but that of the business perspective.
I can tell you, as an injured worker, I have a real problem with the amount of people who are defrauding the system, but not to say that the criminality that is within the system is so rampant that it justifies the approach of casting everybody into the same net, of saying, "Well, you're all trying to defraud the system, you're all lazy laggards who don't want to work, and therefore we're going to treat you all with the same disdain, and exercise these methods of attrition." That was the case constantly, on and on and on.
I have plates in my back now. I've had three major surgeries. I have plates in my back. The one thing that can really help me is good shoes. Good shoes. Five years and I am still waiting for a decision from the board on good shoes, proper shoes. Shoes like these, Rockport Vibrams, cost $130. I can't afford it. I don't have that money right now to be offsetting the board's cost, because God knows, I am $90,000 in debt because of the board.
The Vice-Chair: Mr Parker, I don't mean to interrupt you, but we've actually gone beyond our time. I do thank you for coming forward today and making a presentation. I'm sure that your points will be taken into consideration as we go through the process of reviewing the bill.
Mr Parker: I would like, as an ending note, to extend to any member of the committee or their parliamentary assistants, if they so choose, to contact my company and we can talk about this a little further. Fifteen minutes by no stretch of the imagination does justice to these issues. I would certainly encourage any one of you to give me a call. I am a very reasonable individual. I get passionate about this issue because it hurts; it hurts an awful lot.
The Vice-Chair: Mr Parker, we don't have a written presentation from you. I wonder if you have a business card you could leave, if somebody does want to do that.
Mr Parker: Absolutely. The clerk has my new address. I've actually just moved offices this weekend. I will leave my card anyhow, and if you choose to contact me at the address the clerk has, I'd appreciate that.
The Vice-Chair: Thank you very much then.
Mr Parker: Thank you very much, ladies and gentlemen.
The Vice-Chair: Would our next delegation like to come forward. Good morning. Once again, sorry for the delay. I think you were here at the start. I know we started late, which doesn't help anything in terms of the process. I would ask you to introduce yourselves for the sake of the committee as well as Hansard.
Mr Michael Green: Good morning. My name is Michael Green.
Mr Gary Newhouse: My name is Gary Newhouse.
Mr Green: We are both lawyers who've represented injured workers for over 10 years. We apologize for the lack of a brief; reasons of cost and time.
We're here for only one purpose, and that is to ask the committee to recommend the removal of two sections of the act: section 22.1, which is the section that imposes obligations on workers to report "material change in circumstances" to the board; and subsection 161(2), which makes it an offence for a worker to fail to do so.
We have essentially two reasons for that. The first reason Mr Newhouse will deal with in greater detail in just a minute. The first reason is that workers have no idea what changes in circumstances are material. He'll go through with you in greater detail the problems that exist in deciding whether a change is material.
The second is that there are bound to be hideous disputes about what was reported and what was not because of the board's failure to accurately document what workers tell them. Processing this in a criminal matter will create problems that I don't think were intended to be dealt with in a criminal process, and we'll deal with that a little bit later. I'll turn it over to Mr Newhouse who'll talk to you about the material problem.
Mr Newhouse: As Mr Green pointed out, the wording is, "A person receiving benefits or who may be entitled to receive benefits," is supposed to notify the board. On the question of what's material, obviously there's nothing in this bill and there's nothing in the act now about what a material change would be.
I would suggest that not only would injured workers not know what a material change in circumstances would be, but neither would their representatives, such as ourselves; nor, more importantly, would the people at the board who'd have to decide this. The reason it's complicated is because any particular situation or whatever might be considered a change in circumstances could be material, if we know what that means, or not, depending on what the person is getting from the compensation board.
One thing that bothers me the most right off the top is an obligation, as is set out in section 22.1, to notify the board even before potential benefits are being paid. What that means is that we often have cases -- in fact, I think it's the rule rather than the exception -- of workers who are hurt and go weeks or months before the compensation board manages to decide whether or not they've had a compensable injury. Is that worker in those weeks or months supposed to be somehow sitting back deciding whether or not something is material when they don't even know what they're going to get from the board? It's an impossible situation.
Once they are entitled to benefits, depending on the benefits, various situations may or may not be material. Just to give you some illustrations, if a worker goes back to work at some point, if they're receiving benefits on the basis of temporary total disability, that's a pretty easy one most of the time. On the other hand, what if they're getting a future economic loss award? They're expected to go back to work, unless it's a 100% award, and furthermore, the way the FEL awards run, there's no obligation on anybody to be reporting anything until the reviews are done at regular statutory intervals. So work may be relevant, it may not be relevant.
Something like going on a vacation -- the board actually has a policy which entitles workers to take a couple of weeks off in a year, so that's not necessarily a problem. The policy says they're supposed to be doing it at a time when it wouldn't interfere with their vocational rehabilitation status. Is that a material change? Who's going to know? It can get awfully, awfully silly. What about other health problems? Someone is off with a bad back and they develop a heart condition. Is it a material change in circumstances? How serious is the heart condition? Who decides? Who knows?
The board already has mechanisms and policies to consider these things. There's no reason to impose an extra layer of obligation and an extra layer of confusion and bureaucracy on the system as it already exists.
Mr Parker, who was just here, talked about how he got cut off when he enrolled on his own in a course. We've seen that happen many times. Is that a material change in circumstances? If the board is sponsoring the course, no, it's not. But if the worker decides to show some initiative and enrolls in a course, they may get cut off, even though they're doing, as Mr Parker apparently was, the very thing that the board would want them to do. On top of being cut off, are they also going to get charged under the act with having failed to notify the board in a timely manner of a material change in circumstances?
The list goes on and on, and the bottom line is, by putting in a provision like this, all we end up doing is making situations more confused, more difficult, at a time when undoubtedly the pressures are being put to reduce the number of staff at the board. Put things like this in and you're going to have to hire more people to figure out what is material and what isn't.
At that point, I'll turn it back to Mr Green.
Mr Green: Our second point revolves around the nature of making a positive obligation and the source of disputes that this will create, and to understand this, you have to understand how the board works, how workers report to the board.
Workers are sent forms, a worker's report of accident and worker's progress reports. The worker's report of accident asks for details of the accident and earnings information, who their supervisor is and that kind of information. It's filled out typically around the time of the accident. Then a worker's progress report is sent to the worker periodically during the life of a claim and it asks the worker whether the worker has returned to work and whether the worker has been told by his doctor to go back to work. Those are the basic questions that are on the worker's progress report.
Basically, none of us, I don't think, has any problem if a worker is charged for lying significantly on one of those reports, saying the worker is not working when the worker is working, and there would be some benefit consequence if the worker didn't.
The problem is, that's not what this section deals with. What this section deals with is a situation where the worker is under a positive obligation to call up the claims adjudicator and say, "I got a job," or "I have this other health problem."
The way that's recorded by the compensation board is, the claims adjudicator will do a memorandum. The difficulty with that is that the memoranda are notoriously inaccurate and have been found to be so by the board's own employees on many occasions. The board's employees, hearings officers, have often said, "I don't believe what's in the memoranda." Mr Newhouse and I both have had that experience at hearings officer hearings.
It's one thing for that to occur in the context of a hearings officer hearing. It's another thing for that issue to arise in the context of a criminal trial for fraud, and that's what this section will mean, that we are going to get into disputes between workers and claims adjudicators about what the worker did or did not say.
It's our submission to you, suggestion to you, that that's undesirable, that the board has no need to have claims adjudicators be witnesses and defend their own credibility when they make the memoranda about what the worker did and did not say. That's what this section will lead to.
It would be a lot simpler, if the board has concerns about reports that workers are making and not making, to simply send out progress reports, as they do already, and ask for the information they need. If the progress report is filled out incorrectly and inaccurately intentionally, then by all means a fraud charge can be brought.
But this section, by imposing a positive obligation, with the understanding the positive obligation will be fulfilled by a telephone call -- that's how workers communicate with the board when they don't get a progress report -- this is a recipe for criminalization of the compensation system, and that's not something that I think we want to see.
Those are the two reasons why we think this section should be removed.
I do want to point out that concomitant with the introduction of this bill in the Legislature, the Workers' Compensation Board introduced new policy on fraud, and it contained one disturbing element that the committee should be aware of. It created a different standard of fraud for workers and employers. Traditionally, the standard of fraud for workers was the same as for employers: intentional misrepresentation. Curiously, the new board policy now speaks of worker fraud as being "deceiving." It doesn't sound like much, a change from intentional misrepresentation to deceiving. Well, there is a difference. The section doesn't necessarily require the same mental element of intending to deceive.
It's probably best illustrated by an example that members of the committee will be familiar with. Premier Harris promised, as you'll recall, during the election campaign that there would be no cuts to health care and then introduced a budget in which he cut -- cuts to hospitals -- and he said later that his intention was at the end of the term to build up the budget to where it was at the beginning of the term. Now, I'm not suggesting that he intentionally said something wrong to the public. I am suggesting to you that it's deceptive, and I think that's the way others will see it. That distinction between what's intentional misrepresentation and deception is an important distinction, and it's important that the compensation board be made to understand that there's one standard for fraud; it is the same standard for workers and employers.
With that, we'll take questions.
Mr Duncan: With respect to section 22.1 and subsection 161(2), the whole question of material change is becoming a recurring theme both from worker representatives and management representatives. You have said that those sections should simply be left out of the act. Is that correct?
Mr Green: Yes.
Mr Duncan: And that the whole notion of material change should not be dealt with?
Mr Green: That's correct. The reason is because the Workers' Compensation Board can ask for information and then workers can be under a positive obligation to reply to those questions, as opposed to --
Mr Duncan: To having an obligation to report any material change.
Mr Green: Yes.
Mr Duncan: Therefore, you would not support any kind of notion that it should be left out of Bill 15 and perhaps referred to Mr Jackson as part of his consultation for amendments he's considering, in the interim? You're just saying it's not necessary.
Mr Green: It's not necessary, no. If it's referred to the minister, that's better, obviously. We'll take half a loaf instead of no bread.
Mr Christopherson: Thank you very much for your presentation. I want to follow up on the issue of material change. Do you have any sense of why the government would even want anything like this in there? Is there an alternative that achieves that objective, or is this just very much a misplaced idea that ought to be dropped entirely?
Mr Newhouse: I think it's a misplaced idea that should be dropped entirely. I think the intention, if I can be blunt, is to create sort of a chilling atmosphere where workers will be under the impression that if they do anything wrong or say anything wrong, not only might their benefits be cut but they might go to jail or pay big fines or something else. In that kind of atmosphere, it encourages, along with the delays of the board and everything else, a backing away from the system. Injured workers will say, "Well, gee, maybe it's better not to go on workers' comp at all; maybe it's better to file for sickness and accident through the company," or whatever, because these guys -- it's like, you can turn around and you might go to court for this or that, and I think it's all part of a larger picture, which is totally unnecessary, in terms of the actual running of the system, but perhaps understandable if the objective is to raise as many barriers as possible to compensating injured workers.
Mr Christopherson: Can I ask the parliamentary assistant a question on that?
The Vice-Chair: No. I think we've set the process in the previous hearing days of not doing that, so I'm sorry, not at this time.
Mr Baird: On a point of order: I think what the Chair ruled on on Monday was that following the presentations, between them was --
Mr Christopherson: Okay. Good.
Are there any regulations in this regard that would mitigate your concerns, or once you walk down this road are you pretty much into that chilling effect regardless and that's why you think it should be struck?
Mr Newhouse: I think that's the answer, that once you start, you're stuck, regardless, and regulations would just add to the bureaucracy and the confusion. Again, it achieves no valid compensation purpose. That's really what our view is.
Mr Baird: I just wanted to ask a question with respect to fraud. Obviously, one of the points of this bill is to attempt to deal in a substantive way with revenue leakage. You mentioned that a worker might be concerned that if they do something wrong, their benefits will be taken away or they would be fined or even go to jail, speaking, I suppose, to both workers and employers. What do you think should happen if there is a case where there is misrepresentation of the circumstances by either employers or employees?
Mr Green: Just to be clear, this section isn't about misrepresentation, it's about a failure to represent. It's not a worker saying, "I'm not working," when the worker is working. It's about an allegation by the board that the worker didn't come forward to say, "I'm working."
The difficulty with that, as we've explained to you, is that that's not always material, and the worker will never know whether that's material, and the board may not know, frankly, whether that's material.
But if you're asking the question, what if the worker says, "I'm not working," and the worker is working when the worker's receiving temporary total benefits, those are already prosecuted now.
The Vice-Chair: Thank you very much. Unfortunately, a supplementary won't be afforded at this time because of time. We do thank you for coming this morning and making your presentation.
At this time I'd like to entertain the idea of Mr Christopherson posing his question to the parliamentary secretary, just between presenters. As I understand, that was the order we did.
Mr Christopherson: Just a quick question and follow-up to my questionnaire: Is the government planning to do regulations on material change as it now stands?
Mr Baird: Whether the act is implemented by the board, that'll be, I suppose, up to them to determine both the regulation scheme, and of course there'll be jurisprudence, as with any piece of legislation, on what that means in practice.
Mr Christopherson: But you're not planning to introduce them as any kind of a --
Mr Baird: The regulations?
Mr Christopherson: Yes.
Mr Baird: That would be up to the WCB to implement, as it would be up to the OLRB to implement large portions of Bill 7, for example.
Mr Christopherson: Can I swing over then to the research? You've got a law here. Are there not regulations that are naturally attached to any law, or are they handed over to the public agency, in this case? I'm talking about legal regulations that are usually passed by cabinet.
Mr Ray McLellan: I'd have to refer that to a lawyer in our office. I couldn't answer that right now, but I will get back to you.
Mr Christopherson: Thank you.
The Vice-Chair: I would ask the committee's cooperation in another adjustment to the schedule, if you will. As we noted, 9:45 wasn't attending and 10 also cancelled and they are not showing. We are now actually about four minutes ahead of schedule. Can we agree to introduce the next party on the agenda instead of waiting till 10:15? Okay.
UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, ONTARIO JOINT COUNCIL
The Vice-Chair: I would then ask that the presenters for the next group, the Union of Needletrades, Industrial and Textile Employees, Ontario Joint Council, come forward. Good morning and welcome to our process here. Just for those in the room who have attended after the first announcements, we are limited to a 15-minute presentation time. Inclusive of that is the question and answer period. If you choose to allow that time, that's certainly your prerogative and we'll proceed that way. I'd like you to introduce yourselves, please, for the sake of the committee members and for the Hansard.
Ms Pat Sullivan: I'm Pat Sullivan, the Ontario director of the Union of Needletrades, Industrial and Textile Employees, the Ontario Joint Council.
Mr Jonathan Eaton: I'm Jonathan Eaton. I'm a researcher with the Canadian office of UNITE.
Ms Sullivan: I appreciate very much the opportunity of coming before the committee. I think it was something we hadn't anticipated, with the way the government is working, the fact that this has come to committee. I appreciate the opportunity of coming before the committee.
I'd like to introduce a little bit about our union. It's one of the newest unions in Canada, resulting from a merger with one of Canada's oldest unions, the Amalgamated Clothing and Textile Workers Union and the International Ladies Garment Workers. We merged into UNITE, effective July 1 of this year.
We represent a wide variety of industry, not only in the apparel industry but we also represent auto, chemical and stuff, but our primary industry is the apparel industry, and we have 30,000 members across Canada, over 10,000 in Ontario. It's primarily women; a majority of them are immigrant women and visible minorities. They're not rich. They don't have cellphones in their cars, they're not freeloaders and they're not interested in cheating on workers' compensation claims. Often they're struggling just to maintain a decent living wage.
I have some concerns, I guess, with the restructuring that's going to come under the WCB and how it will impact our members. A lot of concerns are coming out with the changes, taking away the bipartite board and putting on representatives who probably will be only representing employers. If you go through history and some concerns and problems that have been addressed over the years with the compensation system, once we got the bipartite system in, it started to work a little bit differently. With a lot of concerns raised by workers, workers' representatives at least had an opportunity to raise their concerns and be heard and acted upon.
I don't think the committee even had a chance to really get working and now it's being disbanded, even though facts have shown that the system was working better than it had in the past. If it isn't broke, why are we fixing it? I think that's a concern of this government, of taking it totally in the hands and the control of the employers.
I'm also hearing rumours going around that there will be possibly a point where labour can participate, but it's going to be such a small core of what that agency will look like that it won't have a lot of input, but it's also going to have from other areas, say, business. The insurance companies are all sitting in the wings waiting to take over the control of WCB, and I guess we can look at other areas where insurance companies have got involved; it hasn't been in the interest of anybody, workers or non-workers. The insurance companies take care of themselves, and I have some concern with that.
As a union, dealing with insurance companies on a daily basis, whether it be for weekly indemnity benefits or extended healthcare benefit insurance, as days go on it gets tougher and tougher. Even though you have provisions under your collective agreement that very clearly state when workers are going to get their benefits, they still erode the provisions under your collective agreement by being an insurance company that has the almighty power at the end of the day to decide whether or not they get their claims or whether they get their benefits paid for. So I have some real concern when you start to put it out to the hands of private interests out there.
I also get concerned about the way this has been ramrodded through. The government comes into power and within the first month put in Bill 7 and then quickly following that the changes in the WCB under Bill 15. I guess that's why I come back in surprise that this is even coming to committee. Maybe the government is starting to learn in the passing of Bill 7 that maybe we have to listen to the public out there and what their concerns are.
The government actions are an affront to democracy. There's substantial evidence to prove that the compensation problem -- I think some of the things that were said -- I'm trying to get everything in in the short period of time -- is that we're at a disastrous level here now and it has to be taken of. It's shown in fact that the WCB has a lot of money, it has a large surplus, and that there's less money being spent than in years past. If that system isn't working and they're going to put in a new system, that goes back to reflect what it was when the Tories were in power before, when it was in a worse position than it was today.
I don't understand where the government is going. I can look at the areas where our members have concern, I guess the expected change that will come in after Bill 15 when they come in with changes to the act. A lot of our members, especially in apparel, suffer from repetitive strain, carpal tunnel syndrome, neck and shoulder injuries from working at machines that the employers haven't adapted properly in the setup of their equipment. I know the cases we're fighting on a constant, daily basis to try and get them recognized now as work-related.
You know, you have hundreds of people dying in the workplaces and not being recognized. I guess one out of every 17 deaths on the job are related through compensation. To open this all up, I think we are going to go into a worse position than what we have been in many decades, and the opportunity of workers not to have any input into the law which they will now have to live under.
Health and safety will be eroded. There are also rumours coming down in leaked documents that they're going to cut down the number of inspectors who would go under the health and safety. The safer your workplace is, the less chance you're going to have of accidents and injuries and claims being filed. If you start to take that away, take away the certification core training that workers are given out there, that there will be no implementation to force the employers to have certified members in health and safety, then you're going to back to the days of old when your prices were really high and people were getting injured and what avenue we're going to have to go.
If the problem is, as in the government's statement that they think there's a lot of fraud going on in WCB, then deal with the issue of fraud, but I don't think it's anywhere near the majority of the claims that are out there. I think the claims are legitimate. I know the claims that we're dealing with on a daily basis are not fraudulent cases. Even now under the system I think there's a lot of room for improvement that was there, let alone going in and putting it back and taking delays of two, three, four months before they even get reimbursement for their claims that are very legitimate where the doctors and the specialists are all saying it's work-related. In some cases, the companies have agreed and said, "Yes, this is work-related" and yet the compensation board still will not determine whether it is work-related. To put things into there with fraud and whether you do it and pressure will be now put on to the employers -- we have a number of employers that even when employees are being injured at work, they won't file the proper paperwork. They're refusing to send the paperwork that by law must be sent in and nothing seems to ever happen to these employers. If you now put them on a board that's now going to make a decision on what kind of system is going to be in place on behalf of workers, any indication that I have from a number of employers -- that's a large number. It's not just a small number of employers who will take advantage of the situation and put it in there that it would work for employers and not employees.
Insurance is there for the benefit of being able to take care of people if something happens. If the system isn't going to work and you erode that even further, people are not going to report claims, they're going to continue to work when they're injured, and the injuries will continue to get worse and then it's going to end up costing a lot more, a lot more time, lost productivity. There are going to be problems in the workplace where the people are going to refuse to do the work, and I have a lot of concern in that area.
Just on the whole bipartite board, I think it was really working to achieve being workers' representatives and labour and business and everybody in there together working; it was starting to really work. The evidence was there that it was working. Injuries were being reduced. Workers were getting back to work faster because you had the modified work programs getting people back in there. This will all be up for grabs, whatever may happen or may not happen under the new bill.
It doesn't do anything to improve the financial situation or the services provided to injured workers or employers. I don't see a lot of things coming out of this that's really going to go after the employers. It's been there for years and I don't know of many employers who got any more than maybe a slap on the wrist for violating the act that was there now, and it was employer-dominated by controlling the board. Now all those provisions are going to be taken out, even what was there not being enforced.
It seemed to be targeting employees all the time, not employers, that it's the employees who are committing the fraud, it's the employees who are cheating the system. Yet if you look at the hundreds of thousands of cases that are filed every year, if there is some fraud and there's just a few cases, then go after the problem, but you can't sort of rewrite it on the basis that everybody cheats. If everybody is a criminal and they're defrauding and then we have to make it back, it can't be done. Go after the exception to the rule. If there's a problem with fraud, then deal with the fraud, but don't change the whole system on the basis that everybody is guilty of cheating the system. I think that has to seriously be looked at.
We can go into a lot. We've got the submission; I think it covers a lot. You're going to hear probably a lot from the same people who come before the committee on all their concerns. We're open for questions.
Mr Christopherson: Thank you very much for your presentation, Pat. It's good to see your new union active. Everywhere I go, you're in there representing your members. I know how difficult it is to merge unions and you haven't let that get in the way of the job you're doing. You're to be commended and your staff and everyone.
I wanted to draw attention to page 3, second paragraph. You advised that three times you've been writing the minister seeking a meeting to talk about the labour law changes that have been coming forward at lightning speed from this government, and you indicate that you haven't even received a response, let alone a meeting. Can you comment on that?
Ms Sullivan: In calling about Bill 7 and, coming to Bill 15, calling to have a meeting with the minister to talk about the changes and how it's going to impact our industry, we send the letters off, send the submissions; never even a response back that they received them. I think the thing that was most hard and that really angered me, at the end of the process and after Bill 7 became law, I got this very nice form letter from the minister thanking me very much for participating in the consultation process on Bill 7, and that she was quite confident that I would be very pleased with the changes that this government was coming in with.
I then fired off another letter saying what I thought of her sending out this letter. If this is what consultation is, that you send stuff in, whether it's received or not you never know, but well, thank you very much. I was really quite offended by receiving that letter. I think it was an insult and a slap in the face for the time and energy that we put in representing our members and making submissions and asking them in for representation and to get a form letter thanking me for participating and saying that I will be pleased with the changes that come in.
That's the response I got, I guess for all the requests that I made. I became a name in a computer file that says, "When the letter goes out, send it to everybody that's on this list." That's the way they conduct things and I think it's a shame for this government to act that way. At least send a response saying: "Well, thank you very much, but we're not going to consult. We're not going to have meetings. We thank you for the document." But to send out a letter thanking me for going through the consultation process -- consultation is when you consult the two parties conferring on the issue, not one side reading a document and then deciding whether you've consulted or not. I take great offence to that and that kind of action being taken.
Mr Christopherson: I wouldn't mind a copy of that correspondence.
Ms Sullivan: The letter that we sent back to the minister? I think we could probably send you one.
Mr Christopherson: Yes, and your response too, if you don't mind.
On page 7, the very last paragraph, the second-to-last sentence, you talk about the phoney crisis, referring to the finances. It's becoming a key point, notwithstanding the government's insistence on characterizing the opposing point of view as being not of concern at all. I think the difference is between whether it's recognized as a problem that needs to be dealt with or whether it's a crisis, not whether it's something that needs to be of concern at all. I would ask the government maybe to be a little more accurate in their contextualizing of this issue.
You call it a phoney crisis. Could you expand on that a little and why you see it that way as opposed to just a problem that needs to be dealt with?
Mr Eaton: I think that's a really good point. To say that the unfunded liability has put the Workers' Compensation Board on the brink of a financial crisis is ridiculous. We know that the board has over $6 billion in assets in the bank, we know that they ran a surplus last year of $130 million after paying $359 million in rebates to employers, and we know that the ratio of assets to liabilities of the board is higher now than it was in 1985.
Sure, the unfunded liability is a problem. In fact the bipartite board was addressing that problem. We want to be clear: We're not saying the Workers' Compensation Board is perfect and don't change it. It has problems; it does need to be addressed. In fact, we had a royal commission that was looking at this problem in a very comprehensive way, and it was doing so in a process where we would have had input, that everyone would have had input. That was shut down, and we have this phoney crisis of being on the brink of collapse with no justification for it and using that as a pretext to ram through basically what is a wish list of what business lobby groups have been wanting to have for a long time.
I just want to touch quickly as well: This idea that somehow there's widespread, rampant worker fraud of the system -- again there's just no evidence that's ever been provided to support that, and yet it's being used as a cover and a smokescreen to go after workers' benefits and to basically criminalize workers who in good faith are using the system. Workers who suffered injury deserve basic respect and fair treatment.
Mr Christopherson: I agree with you. Thanks very much.
The Vice-Chair: That does expire the 15-minute allocated time. I thank you for coming forward this morning.
Just for the committee members, a point of clarification.
Mr Baird: I just wanted to speak to Mr Christopherson's previous question. My response was completely accurate, that the WCB would develop explicit policies to define "material change in circumstances." I know there was some concern when I mentioned it to the research officer.
Mr Christopherson: If I can follow up, the specific answer to my question is that there will not be regulations per se attached to this legislation but rather the board will have the ability to develop policy that further clarifies.
Mr Baird: That's correct.
Mr Christopherson: And we're going to load up the board with all your favourite appointees, so isn't this cute.
Mr Baird: I think the reason you don't put it in the statute, in legislation, is that it could evolve over time --
Mr Christopherson: No. I'm sorry. I've sat at the cabinet table --
The Vice-Chair: Excuse me, I didn't open it for debate. I only opened it up for a point of clarification. The information passed and I think that's been given.
CANADIAN UNION OF PUBLIC EMPLOYEES, WCB COMMITTEE
The Vice-Chair: I would ask that the representatives of Canadian Union of Public Employees come forward, William Harford as chair. Good morning and welcome to our hearing process. I would ask, for the sake of the committee members and for Hansard, that you identify yourselves.
Mr Bill Harford: Good morning, Madam Chair and board members. My name is Bill Harford. I'm the chairperson of the Ontario division of CUPE, WCB committee, and to my left is Greg Letwin, who is a member of our committee and also a worker advocate within CUPE.
As chair of the WCB committee of the Ontario division, Canadian Union of Public Employees, representing some 180,000 workers in Ontario, I am grateful to be able to take these few minutes to express our concerns regarding the proposed Bill 15 and its impact on the Workers' Compensation Board as it affects the injured worker.
I must confess that I was of the opinion that I could offer little after having heard so many speakers who are much more knowledgeable and articulate than myself. However, when I had a few moments to contemplate the words of some of the speakers, I became disturbed and felt that I had to say something no matter how insignificant or inarticulate.
The vindictive and callous attack against the injured worker left me stunned. I would not have believed the agenda of business Ontario had I not heard it for myself. The most vulnerable of all, the injured worker, seems to be but a faint concern in this whole process, and the proposed changes to be introduced through Bill 15 do nothing to help the injured worker's plight.
As a person who represents injured workers in the workplace, I could not find the common sense behind some of the changes that Bill 15 will introduce.
The removal of the bipartite board creates a level playing field in favour of business. Injured workers will not have the equal representation of the board, representation that knows the real world that injured workers are faced with and yet still is fiducially responsible to the Workers' Compensation Board.
To penalize injured workers with the loss of three days' pay for injuring themselves on the job is ludicrous. Most people I represent earn, on average, $25,000 or less before taxes. This already is a marginal income, and to lose three days' pay places a severe hardship on the injured worker and his or her family.
One can only speculate, but we suggest that this will only force workers to use their sick-bank time while other employees will push themselves to continue working with their injury, causing further harm to themselves. Employers will begin to see an increase in the use of sick leave and long-term disability. The short-term financial relief employers will realize will result in greater expense in the long run when their employees end up on long-term injury.
It is realized that some of the Workers' Compensation Board's finances are out of control. The blame for this is placed on the backs of the injured workers in alleged abuse by them.
On the other hand, it has been recognized for years that a large number of businesses have failed to pay their fair share into the system. This is unfair to those businesses which do pay. Failure of the government to encourage the Workers' Compensation Board to track down these delinquent businesses only increases the financial hardship to those other businesses that operate in compliance with the board.
Money seems to be the driving force catching the attention of business. The offer of rewards in the form of NEER does little to improve the real reduction of workplace injury. It merely promotes creative ways for less-than-scrupulous businesses to show lower rates on paper than actually occurred. Often this is at the expense of injured workers, who are intimidated and/or threatened.
This reward system for business encourages employers to have injured workers, with the promise of no loss of pay, not file claims. This type of abuse by employers should be discouraged with some significant monetary fine or penalty.
If Bill 15 took some positive steps to get all the business players to participate and to create a system which would discourage abuse by employers, the financial situation at the board would begin to lean more towards the black-ink side of the ledger.
The proposed reduction of entitlement from 90% net income to 85% net income will penalize and place further hardship on the injured worker, whereas the reduction in assessment rewards business. This will do little to resolve the financial problems the board faces. In fact, in our opinion, this is nothing more than robbing Peter to pay Paul.
The whole concept of the proposed reduction of entitlement and assessment is nothing more than smoke and mirrors. When the smoke clears we will see that businesses have received a 5% reduction in assessment, coupled with an already generous NEER program, all to the detriment of the Workers' Compensation Board's ability to remain sustainable.
The proposed removal of recognition of soft tissue injury is a blind position of recognizing the dangers of the modern-day workplace injury. The implementation of modern-day technology has in many cases eased the burden of labour and minimized the trauma of crushed bone and tissue. But this same technology has given rise to other types of injuries, such as soft tissue injury due to repetitive action.
I am sure investors in this new technology had no intention of causing injury and never speculated on its occurrence. The fact is that it does occur, and business must recognize the fact that a worker does not have to be bleeding to be injured. This is an industrial accident of our time and must be recognized.
To ignore this type of injury will do one or all of three things: (1) force workers to continue working with pain until they have to quit; (2) it will merely require another, healthy worker to fill in the vacancy until his or her health is injured; and (3) if there is no recognition of the injury, the equipment causing the injury will continue unchanged.
Therefore, in our opinion, soft tissue injury must remain recognized because we know, as well as many industrial hygienists and ergonomists, that it is a real injury spawned in the technology of the modern workplace.
As mentioned earlier, the current Workers' Compensation Board is already a bureaucratic nightmare for the injured worker, and Bill 15 does not appear to be making the system any more user-friendly for the injured worker. This, coupled with the proposed changes, is only going to encourage injured workers to seek refuge under their sick and LTD plans or drive them, as a last resort, to social assistance. We have seen evidence of this trend already in some areas.
The shortcoming of this is that the employer will see increases in the benefit premiums levied by the insurance carrier, and no doubt so will the workers. This a no-win situation, other than for the insurance companies.
Finally, the proposed limiting or removal of WCAT is a major blow to injured workers. If you have ever had to fight tooth and nail for an entitlement, only to have it revoked, then you would understand the importance of this last resort of appeal.
Injured workers who have failed in expressing themselves adequately at an appeal have this last opportunity to present their side of the problem to a board represented by persons of business and worker interest. Should this tribunal be neutralized, without any power, then injured workers where possible will have to seek other relief, either through litigation in the courts, but most likely in the area of social assistance.
The final result will be the injured workers left destitute because the system has failed them.
In summary, I would urge that this board look at the proposed changes with a conscience to what they will mean to injured workers of this province. I ask that they give some thought to the fact that it's a Workers' Compensation Board, bought and paid for by pain and crushed bodies and the giving up of the right to sue. It is not an employers' compensation board.
Mr Jerry J. Ouellette (Oshawa): Thank you for your presentation. I have a comment and a question that I'd like you to respond to.
While I was employed at a certain location I was involved in a traffic vehicle accident. It was recommended that I go and see my doctor at that time, which I did, but to date, 15, 20 years later almost, I never informed the employer that I was actually in an accident; the doctor, while I was there, filled out the WCB forms.
As it stands right now, there is no mandatory requirement for an employee to report an incident to an employer. Do you feel that a change requiring an employee, on the day of infraction, to report to the employer would be beneficial, and how would it affect your union?
Mr Greg Letwin: Section 18 of the act says that it is not competent to forgo the right of workers' compensation, so in essence what it says is if you have a work-related injury in the workplace or in the course of employment, it is the law that you report it, both the worker and the employer.
Mr Ouellette: The point I'm trying to stress is on the day of infraction. The difficulty I'm finding in the cases we deal with is that it could be 10 days later that an injury is reported to an employer, yet the time has been reported to WCB. An employer could be penalized for that time delay there. If there was a requirement that an employee, on the day of infraction, reported it, at least the employers would have no recourse but to initiate a process there.
Mr Letwin: I find that as long as it's reported to the board, the board will not penalize the employer. Quite often the workers themselves, or through the doctor, will report to the board first.
Certainly, there must be some sort of consideration to the employer. That would be the policy of the employer. I don't think that would have anything to do with the government or the Workers' Compensation Board. That would be an employer policy between the employer and the workers. That's something an employer should look into, if that's a problem for that particular employer.
A worker reporting to the doctor, who files a report to the board, or a worker reporting to the board has discharged the legal obligation of reporting a workplace accident to the Workers' Compensation Board. If some accidents go undetected, then that's a problem within that employer group.
I don't see where there's an issue here in what we're dealing with today.
Mr Harford: In my experience, where we do have a lot of people who drive vehicles, and we have had a number of injuries due to automobile accidents in the course, by the very fact of them showing up at the hospital, our employer already has a system that the supervisor has to go.
However, I have had incidents within my own workplace where the injury has been reported but we don't fill out the form 7 as an injured worker; we don't even fill out the accident report. We are interviewed by a supervisor, and in some cases the supervisor can't be found. This has happened several times. What does happen in a number of cases is that the report, when it finally does get around, sits on somebody's desk before it gets through. I suppose it all depends on the type of workplace one works in as to what the occasion is.
Mr Duncan: A number of the concerns you've raised are intended to be addressed by Mr Jackson's legislation next spring. Have you been invited to consult or have you been asked your opinion on any of those major changes yet, either formally or informally?
Mr Harford: No, we have not. We have not been asked directly, and I'll have to qualify that by saying, as chair of the WCB committee within the Ontario division of CUPE, I am not aware of any requests being forwarded to Sid Ryan's office, our president. I'm sure that if it had been, then Sid would have contacted myself and some of the other principals on this issue, but I'm not aware of such.
Mr Duncan: Just supplementary to that, a number of other representatives of CUPE have said the same thing, that they have not been asked for their views. Would you be willing to share those views with Minister Jackson before he brings forward his legislation?
Mr Harford: Yes, we would be most pleased to be able to do that, because I think there has to be some discussion on the issue.
The Vice-Chair: Thank you very much. The time has expired.
Mr Letwin: May I make some supplementary comments?
The Vice-Chair: I'm sorry, that won't be allowed to happen at this time. We do restrict our presentations to a 15-minute question and answer. I would have appreciated the comments prior to the question and answer period, but going into that usually runs the clock out. I'm sorry, that's what's happened.
Thank you very much for coming.
Mr Arnott: I'd just like to suggest to the witness that if there are any additional comments he'd like to provide in writing to the committee, we'd certainly be interested in reviewing them.
ONTARIO PHYSIOTHERAPY ASSOCIATION
The Vice-Chair: While we're in a change here, the representatives from the Ontario Physiotherapy Association, please come forward.
The Chair (Mr Steve Gilchrist): The clerk has asked me to remind the members of the committee that in addition to the written brief from the group before us right now, we have a written brief from the Ontario Nurses' Association that will not be accompanied by oral presentation.
Good morning. I wonder if you would be kind enough to introduce yourselves to the committee members and to Hansard.
Mr Kenneth Higgs: My name is Ken Higgs and I am the president of the Ontario Physiotherapy Association and a practising physiotherapist. With me is Signe Holstein, who is the executive director of the Ontario Physiotherapy Association and also a physiotherapist.
The Ontario Physiotherapy Association is the voluntary professional association for physiotherapists in Ontario. We have about 3,500 members across the province. We welcome this opportunity to make our observations on Bill 15 to this committee. I beg the committee's indulgence. We had only one week's notice of the opportunity to appear before the committee. In voluntary associations such as ours it takes us a little time to prepare something that reflects our members' interests and concerns. This is particularly so given the flurry of government initiatives in the last several weeks affecting the health care sector in general and our profession specifically.
In considering our brief to you this morning, we ask you to bear in mind that physiotherapists, more than any other profession aside from medicine, are the major suppliers of rehabilitation assessment and treatment to WCB clients. In 1994, our members treated about 40,000 injured workers in the community clinic program and approximately 20,000 in the regular program. Physiotherapists are rehabilitation specialists, and rehabilitation of injured workers is the WCB's priority.
We intend to keep our comments brief and to focus only on four of the proposed amendments.
We are pleased with the addition of objectives 5 and 6 in the purpose section.
We see working with injured workers and employers on reducing or preventing occurrence of injury as a critical element in our role. As treating practitioners, we know as well as anyone the kinds of injuries that are occurring and why and where they're occurring. Currently, however, this role has been a missing piece in the equation. The WCB has actively discouraged us from any communication with employers. We hope this section gives the necessary incentive to the WCB to allow us to consult fully and effectively with employers and employees on workplace health and safety and on the avoidance of injury or the recurrence of injury in the workplace. We believe this partnership will promote early and safe return to work.
Our second comment relates to section 3, and somewhat to related section 14 and subsection 161(4). To convey our position, I must give you some background.
Physiotherapists in both the community clinic and regular programs are often in the situation of providing services to WCB clients, only to have payment by the WCB refused or clawed back later because the claim has been denied on appeal or has been abandoned by the claimant.
The WCB has refused to allow physiotherapists in such situations to seek payment from the individual clients. Further, WCB policy does not allow physiotherapists to withhold or delay treatment until a claim is approved, and indeed we would not wish to do this. So individual physiotherapists are left out of pocket for services they rendered to WCB clients in good faith.
According to a recent survey of our membership, 9% of claims in the regular program and 10% of all claims in the community clinic program go unpaid due to claim denial or abandonment. I'm sure you can appreciate that especially in this economy a 10% bad debt write-off for WCB clients alone is tough for many physiotherapy clinics to sustain, especially when it's coupled with an aged WCB receivables problem. According to the same survey, an average of 60% of the WCB claims paid are paid 60 to 90 days after submission by the physiotherapy clinic.
The WCB maintains that its policy is based on statutory prohibitions. We hope that this amendment will allow the WCB to pay claims relating to physiotherapy treatments, and in the case of denials or whatever, obtain reimbursement from the worker rather than penalizing the treating physiotherapist.
Our third comment relates to the proposed amendment to subsection 56(1) that would allow the Lieutenant Governor in Council to appoint a minimum of three and a maximum of seven members to the board who are representative of workers, employers and such others as the Lieutenant Governor in Council considers appropriate. It's the "such others" that concerns us.
If this section is designed in part, as we understand it is, to authorize the appointment of health care practitioners to the WCB board, then we have two concerns.
First, we think it constitutes a conflict of interest for what amounts to supplier groups having official representation on the WCB board.
Second, we are concerned that only physicians or physician representatives might be appointed to the WCB board. We certainly have nothing against physicians, but the appointment of physicians alone would not recognize the very important role physiotherapists and others play in WCB rehabilitation and would tend to further entrench the medical model of health care delivery at the WCB.
We recognize that this is not necessarily a statutory matter, but one involving the administrative discretion of the Lieutenant Governor in Council. We only wish to make the point that the appointment power, if it is to be used at all, should be used to have representation on the board that reflects the range of the health care professions that provide the burden of service to WCB clients, and that of course includes physiotherapy, not just medicine.
Our last concern relates to section 14 of Bill 15 and the proposal for value-for-money audits. The Ontario Physiotherapy Association and the physiotherapy profession support evidence-based practice and welcome objective reviews of the cost-effectiveness of any WCB program in which physiotherapy is involved.
Having said that, we aren't really sure how the new section 77 would work. As we understand it, the minister would determine the program to be reviewed and the review would be undertaken by the Provincial Auditor. But what is the role of the board, to quote from the bill, in "ensuring that the review is performed"? For example, does this mean the board sets the terms of reference for the review? If so, this could provide a means by which the WCB subverts or detours the minister's intentions for the review. Furthermore, are the results of the review to be made public? We certainly hope so, and urge that this be added as a statutory requirement.
If the reviews, once completed, are held by the WCB or even by the minister, they will not contribute to the body of evidence-based practice, nor will stakeholders have any confidence that the results or recommendations are being interpreted or implemented properly.
Finally, we really wonder why licensed public accountants, and licensed public accountants alone, are designated to perform the audits. What do public accountants know about rehabilitation, or ergonomics, work conditioning, functional capacity or fitness for work?
We know that at the federal level, in the conduct of value-for-money audits, the Auditor General of Canada can and does draw on whatever specialized expertise the circumstances of the audit require. When doing a value-for-money audit of the CBC, he brings in people knowledgeable in broadcasting. When doing a value-for-money audit of a department, he brings in people knowledgeable about the programs delivered by that department.
Rehabilitation of injured workers is not simply a numbers game. It involves an understanding of a complex of methodologies and conditions, of a body of clinical research and a range of treatments. It involves variables such as practitioner judgement, patient choice and patient initiative and commitment. It involves the development of a consensus on returning the worker to gainful employment.
In our view, an appropriate value-for-money audit of any WCB rehabilitation program would not focus on the quickest return to work for the least expenditure. An appropriate value-for-money audit would focus on whether the most appropriate treatment was given in the most cost-effective manner. This is where specialized expertise in rehabilitation treatments and outcome measures would be essential.
We strongly urge, therefore, that proposed subsection 77(4) be amended by the addition, after "public accountants who are licensed under the Public Accountancy Act," of the phrase "and such other experts or specialists as may be required."
Thank you for the opportunity to come and speak to you today. We'd like to entertain any questions that the committee may have.
The Chair: Thank you, Mr Higgs. The questioning will begin this round with the official opposition.
Mr Pat Hoy (Essex-Kent): You didn't specifically address this in your brief, but with the rotation being the way it is, I have an opportunity to finally have a chance to ask someone who I think may have some valuable information.
We've had people make submissions here talking about workplace technology and the incidence of repetitive motion problems. Would you agree that the new technology of the 1990s, as we head into the year 2000, is creating a higher incidence of repetitive motion strains and other problems?
Mr Higgs: In my opinion, yes. A good example created by computer technology alone is the injuries we see from keyboarding alone. Yes, I would definitely say that in my experience that is the case, that we're seeing more of them. Maybe it's a recognition thing too, that as more research is done on it, we start to identify the signs a little bit earlier.
Mr Hoy: I have one supplementary to this. You've stated that in your opinion there is more repetitive motion illness, and you're touching on it now. My other question would be, is the medical technology advancing enough to conclusively show that it is repetitive motion related and indeed occurring in one's, let's for example say, wrist?
Mr Higgs: There are lots of research studies being done. I'm not sure how far along they are in terms of actually proving some of the theories that are out there. There needs to be more research done, definitely. I think that's what you're getting at, that we need to produce the evidence that there actually is a relationship between the cumulative trauma injuries that are being claimed and actual fact. That's what you're saying, I believe. I agree that more research needs to be done to firmly establish that link.
Mr Christopherson: I don't have any particular questions on the submission you've made, the issues, because they're fairly clear and straightforward, given the way you've so articulately presented them. But I did want to ask you with regard to your profession -- we know that carpal tunnel syndrome and repetitive strain injury and other things are relatively new on the scene in terms of the decades of industrialization that we've seen. Could you just give me a sense of what you also see in the future that either is just beginning to emerge or areas that you expect will, or do you think that we've sort of seen the horizon that we'll be looking at for the next couple of decades? Your thoughts on that, please.
Mr Higgs: I think there will be just as many problems caused by sedentary work habits as perhaps there were by overexertion. As technology improves, people are tending to become more sedentary; they sit more. From a personal perspective, I find sitting more difficult than anything else I do, and that's what I do most of the time now, is sit. Certainly with back problems, sitting creates just as many back problems as does heavy manual labour in many cases.
I think we will continue to see an increase in the incidence of back problems with the way things are going and certainly repetitive strain, upper extremity problems related to keyboarding. There may actually be a dropoff in some of the other injuries that we used to see because of more knowledge in terms of correct lifting techniques and the improvements with devices to assist workers to not have to lift huge amounts of weight. I'm not sure if that answers your question, but that's the way I see it.
Mr Christopherson: Yes, that's very helpful. That's what I was seeking.
The Chair: We've used up our 15 minutes. Thank you very much for taking the time to make your presentation before us today. We appreciate your coming in.
RETAIL WHOLESALE CANADA -- USWA
The Chair: Our 11 o'clock group apparently is having mechanical problems somewhere on Highway 401, so we'll proceed now with the group that was slated after them, Retail Wholesale Canada-USWA. Good morning.
Mr Dave McCormick: Good morning. I'm Dave McCormick. I'm with Retail Wholesale Canada, the Canadian service sector division of the United Steelworkers of America, which in itself is a mouthful.
Our position on this bill is quite clear: We are opposed to it and we would just like to see it withdrawn. For your information, we've also submitted a copy of a letter sent to Elizabeth Witmer, dated September 19, 1995, which we haven't got a response to and which we really didn't particularly expect to get a response to, either. Quite clearly, it's our position this government has no concern for working people of this province and is intent on hurting those who are most vulnerable. We also are of the opinion that the government will not listen to anything that's being presented during these committee meetings.
It seems to us that what the government's going to do is to try and attack section 73 of the act, which states that claims are judged on a real-merit basis; that what you're going to do is change the system to a system that simply reduces employers' costs at the expense of disposable human beings.
What I want to talk to you about is the real cost of the compensation system, and it doesn't deal with dollars and cents; it deals with human misery, with suffering and with pain. It deals with poverty among injured workers, and I can tell you this is the worst time of the year for me, because right now when I go back to the office I am going to have clients calling me asking how they're going to put groceries on their table at Christmastime, much less presents underneath their trees for children.
What I want to do is to go through this so-called bill. I'll start off with the purpose clause where it says, "The purpose of this act is to accomplish the following in a financially responsible and accountable manner...."
If you're going to do that, then why don't you look at the costs of experience rating and SIEF and their effect on the system? Why did you turn around and disband the Workplace Health and Safety Agency, something that is a proven success story? Why are you turning around now and taking the bipartite board and destroying it as well, something that the previous government, through insight and through consultation, emplaced?
You talk about overpayments of workers and you talk about criminalizing workers. I don't hear you going after employers in the same terms. As a worker representative I can tell you I have claims in front of the board right now where injured workers were coerced into going on to long-term disability benefits prior to this legislation and we're now trying to redress that problem.
You're saying that the worker should notify the board of any changes in his circumstances. I can tell you, a lot of the people I deal with have English as their second language and they're going to have a problem understanding that they have to notify the board of any changes in their circumstances.
"The board of directors shall act in a financially responsible and accountable manner in exercising its powers and performing its duties." Wasn't that the purpose of bipartism to start off with? Wasn't it there because of the fact that government messed it up for the last 20 years and then finally turned around and said, "Let's put the people in charge who can do something about it"?
It worked for the Workplace Health and Safety Agency. It certainly isn't going to work under your new system. What you're going to do is put insurance company executives in there and turn this into a for-profit system. Well, workers gave up their right to sue. It's not something that was handed to us out of the goodness of their hearts. We gave up our right to sue for a fair and equitable system, not a Tory-run agenda.
The only other thing I'd really like to talk about is this penalizing workers $25,000 and throwing them into the same category as employers. I've dealt with injured workers now for the last three years and I have not come across one injured worker trying to abuse the system. I have heard workers turn around and talk about the fact that they only want what they're entitled to for a workplace injury. I haven't come across one case of dishonesty -- not one -- and it's there because the system that's in place right now works.
Before a worker is entitled to benefits, there's three steps he's going to go through: He's going to notify his employer; he's going to have a medical opinion; and he's going to have a report of accident that he has to submit himself. These three things all have to correlate before the board pays a dime. That's why we don't have worker abuse and we don't have worker fraud.
What we do have is we have employers out there, some 20,000 of them, who are not paying into the system. We have banks going for a free ride because they're exempt, yet the same worker who goes out there and gets a loan is paying back that loan from his compensation benefits, and I see no reason why they're excluded. They have workers too and their workers are suffering.
If you want to take a look at where the system is and you want to look at employer abuse, then fine, but don't go blaming the guy who's already hurt on the job, because when he can't walk his daughter down the aisle without taking pain medication, he's paid his price. When I speak to a young worker who can no longer have children because of a workplace accident, she's paid her price. When I deal with a man who can't shake your hand with either hand, then he's paid his price.
This legislation that you've put in front of these people of the province of Ontario is disgusting and should be withdrawn. If you have any questions, feel free.
Mr Christopherson: Thank you for your passionate submission. I certainly share those feelings when we look at it from the point of view of the workers and how this legislation's going to affect them and the intent of this bill to make them secondary to the financial considerations that the government seems to be more concerned about.
I want to ask you a little bit about the bipartite board. We've heard submissions from employer groups suggesting that this is a system that won't work. You point to the Workplace Health and Safety Agency as an example of how it can work. They point to that same agency as an example of why it can't work.
I wonder if you could give us your thoughts on why you think it's so important for workers in terms of health and safety and WCB to have an equal say in the decision-making. Why is that so important to the people you represent?
Mr McCormick: First we'll take a look at the statistics from the 1994 annual report. If you take a look at the number of registered claims in 1994, it's 370,000, and the number of claims in 1990 is 473,000. You've got a 100,000-plus claim reduction. You also take a look at your lost-time claims, which were reduced by one third over that period of time.
That's something that went through because of workers knowing what their rights are, workers learning how to work safely and workers being able to participate in the workplace process of how a job is being done. They're rights that we are entitled to, rights that we had and rights that are being stripped. That can't be done if the employer is turning around and saying to you, "You're going to do what I say, because we have complete control." That's what happens when you don't have something with an equal voice and equal say.
From the retail sector, where I come from, there has been more health and safety training through the certification program that was in place through the agency in the last year than employers did in its entirety in the last 15 years. That's why it's working.
In terms of compensation, yes, workers know what's going on within the board. They're the ones who are feeling the system, and they have a right to at least have their point of view heard in decisions that are going to be made that affect everyone.
Mr Christopherson: The government is suggesting that by having workers represented even in a minority position on their new board workers will get their say. We, of course, in our previous legislation believed that workers shouldn't just have a voice but ought to have an equal say in the decision-making. Do you think that workers will be losing something by moving from an equal say in the decision-making to merely being one of numerous voices on a new board?
Mr McCormick: Yes, they are. They're going to lose a lot. It's a lot similar to the way this committee here works. There are individuals here who have concerns about what's going on, but there's a government out there that's not going to listen to what you say when you bring it back in front of the Legislature. They're going to simply use their numbers to override you and throw out anything that has to do with workers' rights. That's the same thing that's going to happen under your new board.
Mr Arnott: Mr McCormick, thank you very much for coming in. Your concerns are noted, I think, by the government side. I thought I heard you say that there's no fraud within the system at all.
Mr McCormick: I can't say there's no fraud. I can say that in the last three years I have not met with one case of worker fraud, and I represent some 300 workers a year.
Mr Arnott: It's my belief there's significant fraud within the system, injured workers and also employers perhaps, and we've got to root out the fraud if we can. It's my recollection that when this committee dealt with workers' compensation issues two or three years ago, the former chairman of the WCB, Odoardo Di Santo, was sitting where you are today and suggested -- again if my recollection is correct -- that the fraud might be in the neighbourhood of $150 million a year, which is a major problem, and the government is attempting to come to grips with it.
We do have a significant unfunded liability problem, which I'm sure you recognize, which, in our belief, jeopardizes the long-term ability of the system to pay injured workers. I don't know if you've got any suggestions for us as to how we would deal with that problem, but it's one that I feel is very significant.
Mr McCormick: On the unfunded liability, to start off with, for years the employers' position was that they did not want a fully funded system. "Unfunded liability" means if I am injured today that you have the money in that system to cover me until I'm 65 or until I die, whatever happens to come first. Do you want a system that says now, for every workplace injury that ever occurs employers should fully fund that system, or should that money not be spent better on the economy, allowing the employer to at least invest and work with that money? That's the position that labour has come from. Your assets, I believe, are greater now in percentage than they were 10 years ago as to the actual funding of the system. The unfunded liability, to me, is just a hoax system. I don't think employers want a fully funded system.
From a worker's perspective, I certainly wouldn't want my employer having to pay out every dime and possibly take a chance of going bankrupt at the time of my injury. I'd hope they're solvent enough that over the course of the next 20 years they can pay that as they would have my wages. So I really have concerns with that.
In terms of what you're talking about with fraud, there's fraud within any system. The reality is, though, that there are more checks and balances within the compensation system than we have in any other sort of system out there. I can't say whether there's $150 million or there's $50 million or whatever figure. I don't have that information in front of me.
I can tell you from personal experience I have not found workers cheating the system. If anything, I have come across claims that have been denied because workers have been too honest and given too much information rather than the other way. We've had to go back and at least get this straightened out as to, "What did you mean by this when you told that to the board?" and not the other way around. I haven't found that with workers yet.
Mr Duncan: It's probably not a fair question to ask, because I only had a chance to glance at your issues. First of all, in terms of a lot of your concerns today, again, Mr Jackson is scheduled to deal with them in the spring. I'm curious to know whether you have been invited to make any kind of representation or participate in any consultations with respect to those very substantial amendments that the government intends to bring forward.
Mr McCormick: I'd like to thank you for that opportunity. We have not been invited to date. I got notice of this presentation on Friday of last week, that we were given an opportunity to speak, with the date of, "Did you want Monday or Wednesday?" I would certainly hope that when the Jackson report comes out, at least there's an opportunity for full public hearings and not these last-minute, "Maybe we can appease people" type of decisions.
Mr Duncan: I would assume, if I can, by way of supplementary, that you would perhaps want to be consulted prior to any report coming out.
Mr McCormick: Quite frankly, with this government, I don't know if it would do any good. I think this government's going to simply go ahead and do what they want anyhow and they're not going to listen. It's just a paper shuffle with this government in terms of consultation.
The Chair: With that, our 15 minutes are up. We appreciate your taking the time to make your presentation today and leaving us your correspondence.
SOUTH LAKE SIMCOE ASSOCIATION FOR INJURED WORKERS
The Chair: We'll move on now to the South Lake Simcoe Association for Injured Workers.
Mr David Stephenson: Thank you for having me here today. This box beside me which I had intended on unloading and putting up here on the table is a single case that went to WCAT in 1994. I brought it in as a visual aid to show you how much work goes into a case. This case was won, and it cost the board over $70,000 to win this case, not counting the printing of these transcripts, mailing of them etc.
I'm not going to speak against this particular government. I'm speaking against the bill for the following reasons.
First, I'd like to deal with occupational health and safety. Any amendment to this act can only be an improvement. This act could only get worse if there were no act at all.
According to the Minister of Labour's facts and figures, 1992-93, health and safety policy branch, policy and analysis unit, released November 1993, which covered the years of 1987 through to 1993, this booklet clearly shows some very frightening and at the same time interesting facts. You can get this booklet from the Minister of Labour's office.
In 1987, there were 321 government health and safety inspectors. By 1993, there were only 279. This is minus 42 inspectors, or minus 13%.
As a direct result of there being minus 42 inspectors, there were 27,541 fewer inspections and 14,190 less orders to make the workplace safer.
There were minus 2,105 stop-work orders.
There were 207 less fines. That's minus 177 from the previous years, or 74%.
Prosecuted cases fell from 510 in 1988 to 159 in 1993. That is a minus of 351 cases, or minus 69%.
Work-related fatalities rose from 258 to 275 in the one-year period of 1992-93. Seventeen more workers died, or plus 7%.
This all happened in a recession when the workforce was down more than 100,000 workers; 1993 made 1987 look like the good old days when it came to health and safety in the workplace. What I find interesting is the fact that when the workplace became the darkest and the most dangerous was in a time when the government was labour-oriented.
Now I'd like to speak on the WCB.
The Monthly Monitor is a free magazine that anybody can get by simply writing in to the Workers' Compensation Board. I have a copy of the document here, but it's actually put out by the board, so I'm using their own figures. Did you know that according to the Monthly Monitor, in 1990, 19 or 14.7% of workers who died at work were not allowed "immediate death"? And 129 workers died that year. In 1994, 30 or 31.6% were not allowed to die. In 1995, by the end of July, 16 workers who died on the job were not allowed to die.
These numbers do not include workers who didn't die on the spot. If a worker took several hours or several days to die, he or she may very well find themselves among the five in 1994 who were and still are not allowed to die.
Some 237 workers died of fatal workplace diseases in 1994, and 131 or 55.3% were not allowed.
In 1990, 2.3% of all claims were denied, and even though the workforce fell by well over 100,000 workers in the years since 1990, every year more and more claims were denied: in 1991, 2.6%; in 1992, 3.2%; in 1993, 3.5%; in 1994, 3.7%; and as of the end of July 1995, 3% of all claims have been denied.
All this even though the total reported claims fell from 479,731 in 1990 to 374,243 in 1994. These figures as reported from the WCB itself clearly show that something is very wrong with the WCB, for the WCB is a no-fault social protection agency whose job is to protect the accident employer from getting sued and, most importantly, look after the injured worker. That is why it is called the Workers' Compensation Board. Any government that is elected to look after and help protect the very people who elected it should act swiftly to make amendments to the Workers' Compensation Act.
One has to look no further than the report of the chairman's task force on service delivery and vocational rehabilitation of July 1992. This report clearly defines the many problems both internal and external. What it says over and over again is that the WCB must be accountable. Until the WCB is accountable there will be many, many problems and it will be expensive to all concerned.
All the players will be affected one way or another. Today, as you can see, I took the liberty of bringing the file of an injured worker that I successfully represented at a WCAT. That is the Workers' Compensation Appeals Tribunal, for those who may not know. It was a long fight but the injured worker found justice in the end, and I can tell you here today that it became very expensive for the WCB. They paid this injured worker more than $70,000, including interest on moneys owed. And that doesn't even touch the many, many hours, paid man-hours, for board workers who filled out the thousands of form letters and reports, nor does it include postage and other incidentals.
Why doesn't the WCB work? Look no further than articles 69 and 70 of the act. Article 69 deals with general jurisdiction of the board, and what does it say? It says in part:
"Except as provided by this act, the board has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this part and as to any matter or thing in respect of which any power, authority or discretion is conferred upon the board, and the action or decision of the board thereon is final and conclusive and is not open to question or review in any court and no proceeding by or before the board shall be restrained by injunction, prohibition or other...procedure in any court or be removable by application for judicial review or otherwise into any court. RSO 1980, c 539, s 75."
Section 70 of the act is the power to reconsider:
"The board may, at any time if it considers it advisable to do so, reconsider any decision, order, declaration or ruling made by it and vary, amend or revoke such decision, order, declaration or ruling. RSO 1980, c 539, s 76."
These are direct quotes from the act. I have the act here today.
In a nutshell, what the board is saying is that it can do whatever it wants whenever it wants to and that even the courts can't stop it. I don't believe for a minute that any government institution can put itself above the law, and the fact that it has not been challenged in a court of law by one of the legal clinics shows that we still have a long way to go, the point being that the WCB thinks it can do whatever it wants, whenever it wants to, and that it is not accountable to anyone. This must change. Taking sections 69 and 70 out of the act will be an awakening and a small step in the right direction.
What's needed before any major changes occur is dialogue between business, large and small, the injured workers' movement that represents the majority of injured workers, and the unions, who we know represent 31% of the workforce in Ontario. That's according to Statistics Canada.
Lastly, we could do what Australia, Belgium, Cyprus, France, West Germany, Spain, the United Kingdom, Japan, Italy and the Netherlands have already done and already found works. It's called the quota system. It's quite simple. It quite simply is a quota, that companies must hire so many injured or disabled workers, and the quota is from 2% to 6% of the workforce, depending on the country.
Those that hire more get a credit; those that don't, including the government itself, pay a fine. Some amounts of money collected because of fines, in Canadian currency, are: West Germany, in a single year, $122 million; Japan, $24.9 million. In 1989, West German companies, including their government, paid, as I've already stated, about $122 million in fines. The fine money goes to finance an impressive array of rehabilitation and training services. This quota system has been in some of the countries for over 40 years.
There are those who will tell you that there are too many employers and that it will be impossible to enforce such laws. That's like saying that unless every single person who exceeds the speed limit is stopped and prosecuted, a speed limit cannot work.
West Germany has twice the population of Canada, and their money is half as valuable as ours. I mention this only to show that we could generate enough money with the quota system to pay all the costs of rehabilitation and the cost to pensions of injured workers who cannot go back to work.
Let's remember the dignity of the injured worker when we start out to change the WCB, and the impact that such changes have on their families and the community at large.
Mrs Barbara Fisher (Bruce): I do appreciate your presentation this morning, and sometimes it's refreshing for us to have the opportunity of dealing with a person and not an organization. I appreciate that and I understand the amount of work it must have taken to put it together.
What specifically do you see in the bill that is before you today that you would highlight as your priority areas for repair? If the bill before you today is not what you agree with or can support, can you give us some specifics?
Mr Stephenson: Yes, I thought I said earlier I spoke in opposition to the bill. There is absolutely nothing in the bill that I see that's constructive, absolutely nothing at all. In fact, the only thing that even looks good is in the beginning where it says under Purpose it's to protect the injured worker etc, etc. That's already in the act and it's not working now and it's not going to work if we put it in there one more time.
Mrs Fisher: What specifically do you recommend? I hear that you don't like it, but I'm not hearing what the solution is. If we're not right, what is right?
Mr Stephenson: I mentioned the chairman's task force report put out by the government at the time in 1992, and it's extensive; you can get it. It was done internally with the board and externally with people such as myself and lawyers and other agencies, and they define what the problems are. The problem with the WCB is that it's not accountable. The chairman's task force report says it must be accountable.
There isn't any other organization in this province that's not accountable. Even the police force is accountable. The ladies and gentlemen in this room are accountable. But the board, under 69 and 70 of the act, are not accountable. The chairman's task force document -- I have it here -- states over and over again, and as well from board employees; it was done internally. It's the same message, whether it's from the inside or the outside, that the board must be accountable. It looks like this.
The facts and figures I gave you I got from the Minister of Labour's office, and the booklet looks like this. You guys will have an easier time getting it. It took me about six months to get it, and I knew what I was after. But you can see I used it.
The changes to the act now, none of them are any good. You have to think about it. The act itself is about 125 pages and it's half in English and half in French, so in reality we're only really talking about -- give it 70 pages. Now the policy manual is an internal manual that the board has and it's how it interprets the act. The policy manual is 635 pages and they're all in English, so if you have an organization that takes 635 pages to interpret 70 pages, you've got a problem.
Many of the divisions at the board have four or five people to look at your case. They have a case worker, an adjudicator, a claims adjudicator and a voc rehab, and on and on. If you put 10 people in a room with a problem you're going to have a really hard time getting all 10 people to agree on the same solution, and that's the problem with the board. It's not accountable. It's overstaffed in many areas, and areas where it should have more staff it doesn't. For example, the case workers themselves are under a heavy caseload. I process about 800 cases a year with our group, and I know. Everything's just a blur after a while. I would suggest no more than 150 cases per case worker and that the case worker would see the case -- this is very important -- from the beginning to the end, because they don't get to see the end results, so they just race up and down.
The Chair: I'm afraid, Mr Stephenson, we've actually run a bit overtime, but we do appreciate your taking the time and the trouble to have prepared that and to bring it down. I'm sure we'll have opportunities to discuss the other aspects of WCB, and we appreciate your making submissions here today.
CANADIAN AUTO WORKERS, LOCAL 4457
The Chair: Our next group up today is the Canadian Auto Workers, Local 4457. Good morning.
Ms Patty Harrington: Good morning. I'd like to begin by stating that I disagree with the Ontario government illegally firing the bipartite Workers' Compensation Board of directors and the bipartite board of the Workplace Health and Safety Agency, and then, after the fact, including Bill 15's retroactive legal protection for the government on this action.
The introduction of this bill sets the tone of the government to continue their attack on the most vulnerable people in Ontario. This whole agenda is about excluding the workers from having a say and setting the agenda in the workplace. That includes the Workplace Health and Safety Agency, the Workers' Health and Safety Centre and advisory boards for setting workplace standards.
Let me start by talking about the Workers' Compensation Board. Through Bill 15, the government claims to be responding to the unfunded liability "crisis."
The unfunded liability is not a debt. It includes premiums and pensions that would have to be paid out over a number of years. Revenues through WCB premiums would still be received to fund these future payments. To say the unfunded liability is a lie is not accurate, but to put it in a crisis context is irresponsible.
Bill 15 also sends a message that workers are defrauding the system, therefore responsible for the financial situation at the board. This is simply not true. This government treats workers as if they have behavioural problems when in reality they suffer injuries, illnesses and sometimes eventually death.
The WCB is not broke. It has more than $6 billion in assets. In 1994 it paid out more in rebates -- $359 million -- to employers than it imposed in penalties and made a declared surplus of $130 million.
There are 55,000 employers who currently owe around $430 million in unpaid assessments and penalties and 20,000 employers who haven't bothered to register with the WCB. There are also the workers who are not covered by compensation, ie, the financial institutions, insurance companies and doctors' offices, to name a few. These companies should be contributing and those owing should be forced to pay up.
The WCB already has the tools in place to deal with the small amount of worker fraud. There is no need for a whole new set of offences to target workers.
What is the Harris government planning to do to the injured workers? It wants to impose a three-day waiting period for WCB benefits; cut benefits by 5% or more; eliminate through review lifetime pensions awarded before 1990; eliminate compensation for specific injuries such as back and repetitive strain, chronic pain and stress, and reduce future economic loss awards by up to 40% for injuries after 1990. In the meantime, the employers' premiums will be reduced by 5%.
This bill also fires all the labour representatives on the Workers' Compensation Board of directors.
The focus of the purpose clause should be on providing injured workers with benefits and services and return-to-work programs, yet the first sentence of this clause unnecessarily places a duty for further financial accountability.
This bill proposes a new structure, with no commitment to include equal representation or an injured worker on the board. Workers should be entitled to have equal representation on the board.
I oppose Bill 15 and demand it be withdrawn and call for full benefits and services for all injured workers, including return-to-work programs to be restored; the restoration of the bipartite board of directors, including worker representation; an independent WCB, governed jointly by the workplace parties.
Now I would like to speak on health and safety issues. Workers need strong health and safety laws and the right to compensation to protect themselves.
An estimated 6,000 workers die of occupational disease in this province each year, and thousands suffer from work-related diseases. Not all deaths and injuries are recognized as work-related, and many, causing needless pain and suffering to these workers and their families, could have been prevented.
Unless the government strengthens the health and safety legislation, more workers will get sick and be killed. As with any other law, there has to be enforcement and a penalty levied on those who break the law.
Equally important to enforcement is that workers be allowed to participate in the development and delivery of preventive health and safety training. Employer groups are lobbying this government to censor worker input by completely withdrawing funding from the Workers' Health and Safety Centre. They are falsely claiming that WCB funding is employer-contributed. I have participated in several sets of negotiations and employers have calculated the wage package based on hourly wage, benefit cost and WCB costs. You then have to compete with the shareholders' demand for profit for any wage gains.
This clearly demonstrates that WCB funds are 100% worker-funded. To deny workers any say in compensation decisions and health and safety training is nothing short of censorship.
I repeat, I urge you to restore the bipartite board of directors of the WCB, I urge you to restore the bipartite board of the Workplace Health and Safety Agency and I further demand you continue to adequately fund the Workers' Health and Safety Centre.
Therefore, I oppose Bill 15 and demand it be withdrawn, that health and safety laws be strengthened and enforced and that workers are recognized as major stakeholders for issues concerning health and safety in the workplace.
I would like to express how glad I am for this opportunity to speak to this standing committee.
Mr Jean-Marc Lalonde (Prescott and Russell): On page 3, you referred to "providing injured workers with benefits and services and return-to-work programs." Did you want to refer to vocational rehab programs in this case? I would like to know what your view is on 50-and-older people when at the present time they are referred to rehab programs by going back to school. What is your position on this?
Ms Harrington: If you're injured and you're 50 years old and you get retraining and going back to school, it doesn't mean that you're going to get a job. It doesn't mean you're going to get even a full-time job and be able to afford to live any more. Then if you're hurt and you have to buy drugs and you're not covered for that, it's an even further debt on your shoulders.
Mr Duncan: You are referencing the unfair treatment from your perspective with respect to offences, so-called fraud committed by workers versus employers. I received some information from the board this morning that says that maximum fines are never levied for provincial offences against employers and that an employer would have to be convicted several times.
The highest fine ever against an employer was $2,000 and most are approximately $1,000, and on average there are two to four convictions per year -- two to four convictions per year -- and the board doesn't keep track of how many actual investigations there are. I wonder if you could comment on that, particularly relative to the fact that some of the provisions in Bill 15 are so onerous against workers. I'd like to hear your views a little bit more on that.
Ms Harrington: Some of this is hard to understand. I do try to represent injured workers, but there's the part in there about the 10-day -- if you have to make a change -- just let me find that.
Mr Duncan: The definition of material change, section 22.1. The worker sections are section 22.1 and subsection 161(2), which deal with the notion of material change. Subsection 161(2) is the offence provision under the new part V. Do you think that's quite onerous on workers relative to the kinds of burdens that are placed on employers?
Ms Harrington: Yes. It's not clear and I really don't know what it means. Does it mean if I forget to make a notice of a change in 10 days I'm going to get a fine, you know, be put in jail or something like that? People are going to be afraid to witness an accident because what if they report something wrong? It deals with intimidation tactics against the workers. Yes, you said that only a couple of the employers are ever fined.
Mr Christopherson: Thank you very much for your presentation. You refer a few times to the irresponsibility of the government to refer to the unfunded liability as a crisis. Some of the unions that have come forward have suggested that one of the revenue and expenditure problems is the whole experience rating system. I wonder if you've had any experience with that yourself at all. You're not familiar with it?
Ms Harrington: No. Maybe if you could explain a bit.
Mr Christopherson: No, that's fine.
What I would like to do, then, is move to the bipartite board structure. As you know, right now the board has equal representation between employers and employees. The government feels that this is no longer acceptable and it is going to reduce the employee representation to a minority position on the board. A number of unions have felt that this is going to be detrimental to workers because they've lost that 50% say in the decision-making. Can you share with us your thoughts on that?
Ms Harrington: I think it's very important that injured workers are included in the say because the other way, if it ends up with insurance companies or somebody that's not even a stakeholder in this saying what they think should go in, it's not fair. You need to have workers saying what their responsibility is and maybe they can help bring light to the problems that are on the board. Without that, it's going to be maybe people who don't know, they're not sure of what they're talking about, putting input in that makes decisions for thousands of injured workers.
Mr Ernie Hardeman (Oxford): I was just going through page 4, near the bottom. "They are falsely claiming WCB funding is employer-contributed. I have participated in several sets of negotiations and" realize that this is part of the wage package. I would totally agree with that, that in fact the cost of doing business to an employer is the total cost of labour as it relates to the product.
Why is it, then, on page 3, that "In the meantime, employers' premiums will be reduced by 5%"? Would that not fall into the same category, that in the process of negotiation this will in fact reduce the cost of the product, that the contribution is a total reduction? If it's totally employee-contributed in the first place, is that not a reduction to the employee?
Ms Harrington: I think this money they're going to save, the 5%, plus all the other savings they're going to get on the people who are not going to be covered, the loss of stress, chronic pain, back injuries, future economic loss awards, is the money that's going to go back to the shareholders. It's going to be bigger profits, and no, it won't be passed on to us.
Mr Hardeman: But when you negotiated the contract, including the cost of compensation as part of the cost in the package, when that cost is less, would that not automatically mean in your next negotiations that you would be able to negotiate that back into it as part of the employees' package?
Ms Harrington: That's part of the whole picture in negotiations. There's only so much money, right? If it goes to your work boots or your holidays or wherever it's getting divided up, I believe that money will still go back to the shareholders. It'll be bigger profits for the corporations.
The Chair: We've now reached the end of our 15 minutes. We appreciate you taking the time to come in and make presentations to us today.
CANADIAN AUTO WORKERS, LOCAL 303
The Chair: Our next group up will be the Canadian Auto Workers, Local 303. Good morning, gentlemen. I wonder if you'd be kind enough to introduce yourselves to the committee and to Hansard.
Mr John Sommerville: My name is John Sommerville. I'm the chairman of the WCB committee for CAW Local 303. My colleague is Rob Wiersma, who is a WCB rep as well.
Our local usually submits a written brief to the royal commissions and there are, in the records of the Parliament, several of our briefs which speak precisely to various issues that we think should be corrected in the workers' compensation system.
However, this morning I felt it was more useful to attempt to shed some light on what is the perception of people who are involved directly in the compensation appeals process and who deal with the system on a day-to-day basis, in the hope that we might be able to ward off what appears to be a disastrous possibility for the injured workers we represent and injured workers in general in the province of Ontario.
My understanding of the proposed changes of the present government include certain key elements that our senior groups like the CAW national office and the Ontario Federation of Labour have addressed in specific terms. I would like to speak to some specific issues. I notice that the focus of the government is an effort to try and pay down or eliminate what is called the unfunded liability. For the record, the workers' compensation system has not always been a victim of unfunded liability. It's a relatively recent development, actually.
The development of the unfunded liability, as I understand it from my reading of both board documents and the general history, actually dates back to some time in the 1980s. Prior to that, the liability of the Workers' Compensation Board was in fact being covered more or less by collecting premiums from employers around the province of Ontario. What happened in the 1980s was that the board, for its own reasons, some of which we would have to assume were political in origin, decided to give employers a bit of a holiday on the premium rates that they had to pay. That holiday resulted in the biggest portion of the unfunded liability.
The other element that I understand caused some of the unfunded liability had to do with some relatively unwise investments made in European principalities that resulted in large losses.
It is absolutely unacceptable to any reasonable citizen to have those burdens transferred on to the backs of injured working people in the province of Ontario.
I'd like to specifically address these remarks to the Conservative members of Parliament who are present here today. The Conservative Party has a very long and dynamic history in the province of Ontario. They ruled in an uninterrupted way for 40 years, during which time they very much were involved in the administration of a Workers' Compensation Act which has a history. That history goes back to around 1911. At that time, a deal was struck. It was a historic deal. The deal was that injured workers would surrender the right to sue their employers in court for damages for neglect, in lieu of which they were to receive compensation benefits that were to be paid in a "non-adversarial environment."
What I see happening and what I fear is going to happen if the changes that are proposed are put in place is that workers will be put into a system where that historic deal, which, because the Conservatives ruled the province of Ontario for 40 uninterrupted years, they bought into for at least 40 years in recent history, is going to be broken.
One of my questions, and it's a rhetorical question, is, for the three-day period that workers would be obliged to wait prior to receiving compensation benefits, will their right to sue their employers for neglect or negligence be restored?
The other question I would like to raise to the whole panel for all of your considerations: The last time I checked, injured workers pay 100% of the price for a loaf of bread or a pound of meat or five pounds of potatoes. Because a worker gets injured, he doesn't automatically get a cheaper mortgage, cheaper car payments or cheaper anything else. Why on earth would it be reasonable, rational or acceptable to any humane body to suspect that a working person injured through no fault of his own would be placed in a position to receive, not 95% of his net, which approximately works out to his wages since it's untaxed -- an 85% payment does not produce that result.
So please, ladies and gentlemen, consider that the people you're talking about here are your constituents. They are regular taxpayer-citizens. In addition to that, almost 100% of the money they get gets distributed to merchants, bankers and other people with whom some of you may have a closer relationship than I do.
Additionally, I also heard some discussion that you were interested in ending fraud, stopping the cheaters. Believe me, as a taxpayer and a citizen and a person who is an advocate in the compensation system, I too am very anxious to bring an end to any fraud. If somebody were to ask me, "Is there fraud among injured workers?" I would have to admit, yes, there is. It is relatively small; it is certainly, in terms of monetary importance, relatively unimportant.
The important areas of fraud are in the underground economy. Many, many construction firms working in the fair city of Toronto and around the province of Ontario employ workers outside the system. They pay no premiums, and there is absolutely no mechanism to enforce the payment of premiums by those companies.
There are people at the board who are employed as investigators, whose primary function is to investigate claimants. They go out and they do that. Some of what they do is reasonable and acceptable, and some of what they do is much less than that. But that's as it would be with any system.
So, in closing, since you have all of the briefs and the practical material before you, I hope that you study it. I hope you do not proceed to break this historic deal with your constituents, those injured workers who through no fault of their own suffer an injury in the workplace. I do not know, in my 22 years of experience as a union rep, of one single instance where a worker knowingly put himself in the way of an injury. I guess I've been lucky; I never met any masochists. If I meet any masochists, I will advise them that that's an unwise behaviour. Masochism is, as I understand it, a relatively rare disorder. Any questions?
Mr Christopherson: Thank you for your presentation. I think you've done an excellent job of outlining how the changes that this government has introduced will work to the detriment of workers and to the benefit of employers and their bottom line.
I'd like to focus a bit on the bipartite board that's being dissolved. As you know, right now workers have 50% representation on the board and have an equal say in the decision-making. This government has decided that workers need to be put in their place, and their place is a minority voice on this board. Can you give us your thoughts, in your own words, about how you think workers, the people for whom this system was set up in the first place, will be losing as a result of the 50% bipartite representation they now have being knocked aside?
Mr Sommerville: Yes, David, I think I can. My experience goes back to before we had bipartite and after, so I have a certain advantage of an overview. Before we had bipartite, the role of the MPP was very much central to resolving workers' compensation problems in the board, because the only instrument that union reps like myself had to try and move a system that tended to be rather slow off square one was to contact the chap's member of Parliament, ask for a letter -- and I know you folks are busy folks, and I think you want to think about the future carefully when you think about that, because when we lose the bipartite approach, we lose the people with whom we assist our injured workers.
Typically -- I'll give you a case example -- in the old days, a worker would get injured on the job. His case would go into investigation. Investigation by the board into the case might result in a delay of six to eight months, typically. In the interim, the workers I represented were relatively fortunate; they had a health care plan that clicked in and they had supportive benefits.
But in order to win the chap's case, or at least to get some speed to the resolution of the case, I would contact the local member of Parliament, whether that was a Liberal, Conservative or an NDP person. I would contact that person, write him a letter, he would write a letter to the appropriate adjudicator providing some supportive information that I would provide to him, that would go through a bureaucratic process, and eventually I might be able to cut a month, or a month and a half if I had a really sharp MPP working on the job, to get it done.
When we got the barpi -- barpartite -- sorry, I got my tongue in my eyetooth so I couldn't see what I was saying. When we got the bipartite boards -- that's hard to say fast -- what happened is, I had a contact person at the board who would quite honestly, very objectively, look at the facts and, if he saw that somebody was dragging their feet on purpose, speed up the process, and I might be able to cut as much as four months off of what was otherwise a built-in delay. I think that might focus what your future's going to be like, because I can assure you, if the bipartite board goes away, all of the people I have who are having problems with the board are going to be getting in touch with their various members of Parliament, because it's the only instrument I'm going to have left.
Now, you might say, "That's great; I'm going to have some direct contact with some of my constituents." But there's a problem in it, because I don't care how good you are, that bureaucracy's going to eat your time up just like it eats mine.
Mr Baird: I'll just go very quickly, given that we've only got about a minute and a half left. With respect to the three-day waiting period and the question you brought up with respect to the right to sue being restored, that will form part of Mr Jackson's study. He'll be issuing a discussion paper in the coming weeks and will then be undertaking a consultative process. I'm sure he'd welcome your views and thoughts on that when he does begin his consultative process, shortly after the release of his discussion papers. That's so he'll have a focused and clear discussion on that.
With respect to the reduction of benefits, I think the motive is very important here. We may disagree on the substance of it. Our motive is I think twofold. One is to have a WCB system there to protect injured workers that's financially strong and vibrant to ensure that we can meet the demands, the justifiable and straightforward demands of injured workers; that the money is there for them. We believe that if we don't take action, the money simply won't be there for them, and that's our motive. We very well may disagree on how to get there.
Secondly, with respect to job creation, we believe that a good WCB system is important for job creation and an expanding, growing economy. That's another one of our motives.
Finally, I would wholeheartedly concur with your view when you said that you were anxious to bring an end to any fraud in the system. When you stated that there would be inevitably some level of worker fraud -- we don't know, no one knows -- I would just wholeheartedly share your view. In our judgement, no matter how small it is, no fraud is good and we want to make sure that both workers and employers don't defraud the system, because I suppose they're not so much defrauding the system but defrauding injured workers themselves. We believe that no fraud is good and I would just concur with your remarks there.
Mr Sommerville: I'm going to interpret your question, because it wasn't framed as precisely as a question as I thought it was.
On the three-day waiting period, you should think about the jurisprudence that is built into the compensation appeal system. One of the principles you have to understand is a concept called workers' continuity of complaint. If you delay the complaining process by three days, particularly in non-unionized environments, you're going to have intimidated injured workers forced to beg for work placement while injured. Since they can't afford to do without the money -- I know this may not be a part of your experience, but workers really need all the money they get. I read a statistic the other day that 80% of the people in Canada are spending 117% of what they earn. Obviously, workers cannot afford to lose three days' wages or benefits that would replace it.
In addition to that, you must come to understand that that initial report of injury is absolutely vital to a fair appeal process. If you eliminate that evidence that happens at day one when the guy gets hit by the truck on the job and you force him to lose wages or benefits or you force him, in non-union environments, to beg his boss for some kind of like-job placement for which he has no legal or contractual rights, in those environments you're going to create such gross injustices that it will be unbelievable.
I know I'm over, but additionally, in regard to the unfunded liability, the last time I checked, the banks and the insurance companies were not a part of this system. If the banks and the insurance companies were to be made a part of this system, as they well and properly should be, because people in banks do get injured, people in insurance companies do get injured, this system, which is supposed to be an all-encompassing system to cover all of the workers in the province of Ontario, would be totally funded, if the banks only paid their fair share.
The Chair: We appreciate your presentation here today, Mr Sommerville and Mr Wiersma.
Just for the members of the committee, we have one housekeeping matter. The group slated to speak to us at 11 o'clock still has not arrived, and we've had not further correspondence from them. I guess there would be an opportunity for them to be slotted in at 6:15, given the standing order that was passed enabling our sitting times.
The procedural matter I'd like to deal with, though, is that Mr Christopherson has presented a substitute form. However, it was presented after the 30-minute deadline. Am I to take from your comments when you handed it in that there will be no other representative from your party?
Mr Christopherson: It's the only one that was confirmed. Yes, that's our difficulty. I apologize for the lateness, but it's from 5 o'clock on for today.
The Chair: It is within the purview of the committee, if it deems fit.
Mr Duncan: Do you want to allow them to substitute someone else?
The Chair: We need unanimous consent to allow them to do that. All agreed? Agreed.
Mr Christopherson: I appreciate that. Thank you, members of the committee.
The Chair: With that, the committee will stand recessed until 3:30 this afternoon.
The committee adjourned at 1203.