Monday 16 June 1997
Workers' Compensation Reform Act, 1996, Bill 99, Mrs Witmer / Loi de 1996 portant réforme de la Loi sur les accidents du travail, projet de loi 99, Mme Witmer
Statement by the minister and responses
Hon Elizabeth Witmer, Minister of Labour
Mr Richard Patten
Mr David Christopherson
L.A. Liversidge and Associates Ltd
Mr Les Liversidge
Mr Scott Seiler
Union of Injured Workers; Toronto Injured Workers' Advocacy Group
Mr Phil Biggin
Ms Marion Endicott
Mr Alberto Lalli
Mr Dante Lerra
Ontario Federation of Labour
Mr Gord Wilson
Employers' Council on Workers' Compensation
Mr John Blogg
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente: Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président: Mr Jerry J. Ouellette (Oshawa PC)
Mr DominicAgostino (Hamilton East / -Est L)
Mr DavidChristopherson (Hamilton Centre / -Centre ND)
Mr TedChudleigh (Halton North / -Nord PC)
Ms MarilynChurley (Riverdale ND)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs BrendaElliott (Guelph PC)
Mr DougGalt (Northumberland PC)
Mr JohnHastings (Etobicoke-Rexdale PC)
Mr PatHoy (Essex-Kent L)
Mr W. LeoJordan (Lanark-Renfrew PC)
Mr BartMaves (Niagara Falls PC)
Mr John R. O'Toole (Durham East / -Est PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr JosephSpina (Brampton North -Nord PC)
Substitutions present /Membres remplaçants présents:
Mr TedArnott (Wellington PC)
Mr JohnHastings (Etobicoke-Rexdale PC)
Mr Jean-MarcLalonde (Prescott and Russell L)
Ms FrancesLankin (Beaches-Woodbine ND)
Mr RichardPatten (Ottawa Centre / -Centre L)
Mr E.J. DouglasRollins (Quinte PC)
Also taking part /Autres participants et participantes:
Mr JohnGerretsen (Kingston and The Islands L)
Clerk / Greffière: Ms Donna Bryce
Staff / Personnel: Ms Lorraine Luski, research officer
The committee met at 1531 in committee room 1.
WORKERS' COMPENSATION REFORM ACT, 1996 / LOI DE 1996 PORTANT RÉFORME DE LA LOI SUR LES ACCIDENTS DU TRAVAIL
Consideration of Bill 99, An Act to secure the financial stability of the compensation system for injured workers, to promote the prevention of injury and disease in Ontario workplaces and to revise the Workers' Compensation Act and make related amendments to other Acts / Projet de loi 99, Loi assurant la stabilité financière du régime d'indemnisation des travailleurs blessés, favorisant la prévention des lésions et des maladies dans les lieux de travail en Ontario et révisant la Loi sur les accidents du travail et apportant des modifications connexes à d'autres lois.
The Chair (Mrs Brenda Elliott): Good afternoon, everyone. Welcome, ladies and gentlemen, members of the committee. This is the first hearing of the standing committee on resources development for consideration of Bill 99. If everyone is settled, we welcome those not only in this room today but in the adjoining rooms who are listening to the proceedings this afternoon.
For those of you who are new and haven't been to a standing committee before, I'd like to just take a moment to explain to you how this works and what it's all about. This is a standing committee of the Legislature and as such we're governed by the same rules. Just as in the Legislature, in the House itself, we very much welcome guests, we do also in our committee hearings. But just as in the House itself, demonstrations or applause is not permitted. This is committee work and we would very much appreciate your cooperation in abiding by the rules. This is an important issue for us, so that presenters are given the opportunity to make a presentation without interference and with a maximum of courtesy. With that, we welcome you all.
STATEMENT BY THE MINISTER AND RESPONSES
The Chair: Our first presenter this afternoon is the Minister of Labour. We're very pleased to have the Honourable Elizabeth Witmer join us. She will have 20 minutes for her presentation, and this will be followed by 10 minutes from both the official opposition, Mr Patten, and the third party, Mr Christopherson. Welcome, Minister.
Hon Elizabeth Witmer (Minister of Labour): Thank you very much, Madam Chair, members of the committee. I certainly appreciate the opportunity to be here today. The deliberations upon which you are about to embark are a very important milestone in the reform of the Ontario workers' compensation system, and I certainly want to commend you and wish you well as you undertake the very important task ahead of you.
Bill 99 is the final step in the complete overhaul of the Workers' Compensation Board. It is based on years of hard work and effort by countless groups and individuals who have been concerned for many years by the problems they were seeing at the board. Certainly as the critic for labour for five years prior to 1995, I witnessed at first hand the problems at the board and the many attempts at reform. By the time our government took office two years ago this month, we were faced with several challenges.
The unfunded liability was projected to reach over $18 billion by the year 2014 if no action was taken. Obviously this was going to further jeopardize benefits in the future for injured workers.
The unfunded liability represented three times the unfunded liabilities of all the other provinces combined. As you probably know, other provinces in Canada have been attempting to eliminate their unfunded liabilities.
Even though accident frequency was declining, which is a good thing, employer assessment rates were $3 per $100 of payroll. We were second only to Newfoundland, and obviously this created a disincentive to job creation and investment.
Our high unfunded liability meant that when employers were hiring new employees, they became responsible for $4,000 of the unfunded liability every time they hired a new individual.
We also heard about a system that was focusing on compensation with little or no regard for the prevention of illness and injury, and certainly we knew that this had to change.
Despite the fact that we were spending hundreds of millions of dollars every year on vocational rehabilitation and other programs, the system was doing a very, very poor job of returning injured workers to work in a safe and a timely manner.
Therefore, it was necessary to take immediate action.
We began with Bill 15 when we replaced the bipartite board with a multistakeholder structure. We instituted value-for-money audits to make the board more accountable. We strengthened the board's ability to combat fraud, and of course when we talk about fraud, we talk about employer, employee, supplier and internal fraud. We also appointed a new chair, a new president and a new board of directors.
The board saw to it that our commitment to lower the average employer assessment rates by 5% was fulfilled, so today in the province of Ontario we have the lowest assessment rates that we have had in 10 years.
The new board has also announced a new organizational structure and it is building a new culture that focuses on better service delivery and improved relations with injured workers and employers.
Finally, in November 1996, we took the final step in the overhaul by introducing the Workplace Safety and Insurance Act.
The existing legislation was first introduced in 1914. Unfortunately, the act was out of date so we have completely rewritten the act using contemporary language to reflect the modern workplace and to make it more understandable and user-friendly for injured workers and employers and others who use the system.
If we look at Bill 99, it is based on five principles.
First, we will restore the financial viability of the board by eliminating the unfunded liability by the year 2014.
As I mentioned before, this is consistent with the objective of WCBs throughout Canada. We are keeping our commitment to adjust benefit levels from the current 90% of pre-injury net earnings to 85%. Again, we are doing what has already happened in New Brunswick, Nova Scotia, Manitoba and Newfoundland where similar adjustments have been made. In fact, in New Brunswick benefit levels start at 75%.
Inflation protection is being adjusted, as it was with the previous NDP government, but the 100% disabled and the survivors of deceased injured workers are not affected by this adjustment.
At the same time as we have proposed measures on the benefit side, we are taking steps on the revenue side to ensure that all employers pay their fair share. This has been neglected in the past.
Currently, some companies are able to move into Ontario temporarily and they can leave with outstanding WCB premiums. Other employers can reorganize their businesses to avoid outstanding WCB debts. This is unfair, because it forces honest companies to bear more than their fair share of the burden.
Under Bill 99, this would no longer happen. For, when circumstances require, the board would be able to levy assessments against employers as security to recover any unpaid debts. When necessary, the board would be able to hold a purchaser liable for the debts of the previous employer.
So, be it on the benefit or the revenue side, we are ensuring that our financial reforms are balanced, fair and effective and still result in injured workers receiving among the most generous benefits in North America.
The second principle of our reforms is to restore the system to its original mandate as a workplace accident insurance plan.
In past years compensation has been paid for conditions whose connection to the workplace is often difficult to determine. Therefore, it is now proposed that compensation be provided for stress when it results from a traumatic workplace incident.
Similarly, it is proposed that compensation for chronic pain be limited to the normal healing time. The draft regulation defining normal healing time is available.
As well, we are refocusing occupational injury and disease research, as other provinces have done, and we are integrating it within our WCB as is done in every other province in Canada. We are also refocusing the offices of the worker and employer adviser and the WCAT so that all parts of the system are working towards the same goal, the goal being to make workplaces in this province among the safest in the world.
The third principle of our reforms is to do a much better job returning injured workers to work in a safe and timely manner. When I meet with injured workers that is the one request they have. They want to be back at work, but we need to make sure it happens in a safe manner and also in a more timely manner.
Therefore, Bill 99 will establish an entirely new return-to-work strategy that emphasizes the need for the workplace parties to establish and maintain contact after the injury and endeavour to return the injured worker to work as safely and quickly as possible.
However, if an injured worker is unable to return to work with the pre-injury employer, there may be a need for a labour market re-entry plan so that the injured worker can be fully prepared to re-enter the workforce at a level of earnings consistent with his or her pre-injury situation. The board would be responsible for the development of the plan with the injured worker and, where appropriate, the employer and the attending health professional.
But the return-to-work process requires more than cooperation. It's going to require information on which to base sound decisions. That is why an injured worker would be required to consent to the release of functional abilities information to the employer as part of their application for benefits.
I want to emphasize that functional abilities information will describe only what an injured worker can and cannot do. It is not, and I stress, confidential health information. A one-page form has been developed by the WCB and it is available in draft form today for all members of the committee.
The fourth principle governing our reforms is increased self-reliance. This is a principle we have tried to reflect in all the initiatives we are undertaking at the Ministry of Labour.
We recognize that the workplace parties are in the best position to prevent injury and illness and to manage the consequences of injuries and illnesses when they do occur.
Therefore, our proposals encourage employees and employers to assume more responsibility for their own health and safety. We also recognize that the board's role needs to change, to be more of a facilitator: monitoring, mediating and resolving disputes where necessary.
Notwithstanding this emphasis on increased self-reliance, a failure to cooperate in the return to work or labour market re-entry process could result in penalties for either party. These penalties need to be there to ensure compliance, as does a strong enforcement presence.
In fact, our health and safety inspections are increasing regularly and they are projected to increase 46% this fiscal year. We are being proactive at the Ministry of Labour in the area of health and safety. We recently recruited 20 health and safety inspectors and we will be advertising this summer for 26 more.
Finally, the fifth principle of our reforms and personally for me the most important, we must focus on the prevention of injury and illness. To highlight this new focus, we have now included prevention as part of the purpose clause of the act.
Our goal is to make Ontario's workplaces among the safest in the world. Emphasizing prevention and working towards zero tolerance for fatalities will help to reduce the human, the social and the economic cost of workplace injury, illnesses and fatalities.
On average, someone is injured on the job every nine seconds in Canada, and one worker in 15 is liable to have an accident in the coming year. However, most alarming is the fact that one third of compensable time-loss accidents involve young workers between the ages of 15 and 29.
Clearly, there must be a greater emphasis on prevention. Hence our changes in Bill 99. They will mean a complete change in focus from compensation to the prevention of injury and illness.
In recognition of this emphasis on safety, the WCB will be renamed the Workplace Safety and Insurance Board. This will also reflect its return to insurance-based principles in its operations.
The bill before this committee is the final step in a reform effort that began even before our party formed the government two years ago. Since we assumed office, we have continued to consult, first in the development of Bill 15 and then in the development of the New Directions report by my colleague Cam Jackson. Mr Jackson consulted with more than 150 individual injured workers in 1995 and 1996 across the province, and he also received more than 200 submissions providing considerable advice on reform initiatives.
Furthermore, as the Ministry of Labour began its process of turning Mr Jackson's report into legislation, we continued to consult with injured workers, employees and employers. This consultation has greatly enriched the final content of Bill 99. In the eight months since the bill was first introduced we have received feedback in a number of areas, and I want to review some of what we have heard.
Some people in the employer community have said, "Why are you not adopting a three-day waiting period?" We did not include a three-day waiting period because, first, there is no compelling evidence that a benefits waiting period by itself has any significant impact on workers' compensation systems. Second, it penalizes workers who are legitimately injured, particularly workers whose duties expose them to danger, such as police and firefighters. Third, such an amendment would have required an inappropriate intervention in collective bargaining relationships, since the waiting period, to be effective, would have required a prohibition on negotiated top-ups, and we were not prepared to intervene in the collective bargaining relationship.
Another issue that has been questioned is why we did not redefine "accident" to ensure that injuries are directly traceable to the workplace. In short, there is no evidence that redefining the word "accident" simplifies the problem of entitlement or better screens out undeserving claims. However, there is a risk that a new definition or a revised entitlement provision would cause greater uncertainty for all parties and generate litigation without making a difference in the types of claims that receive benefits. Instead, our approach restricts access to benefits for injuries that have multiple non-work causes, such as chronic mental stress, and limiting benefits for chronic pain.
We have received some feedback on return-to-work obligations. Our objective is clear: We want to get injured workers back to work in a safer and more timely manner. However, it has been pointed out that there may be a need to clarify the return-to-work and labour market re-entry sections in the bill to ensure that the process is fully defined and seamless. I would encourage this committee to provide advice and suggestions to us on how we can ensure that this provision will improve return to work.
WCAT: Some concern has been raised by employers and injured workers over changes to WCAT's so-called policy audit function. Bill 99 ensures that the final say in all policy matters rests with the board, not WCAT. I should say this has always been the full intent of the existing act on paper, but it hasn't always happened in practice. There has been some suggestion that the WCB's ultimate policy authority could be assured in another manner.
I want to say that in this area of WCAT and in others that I have not mentioned, the government is quite willing to consider ideas or suggestions you have that would refine the bill. We want and look forward to the 14 days of debate that are going to take place on Bill 99. It's going to happen not only in Toronto but in cities and towns across Ontario this summer.
I want to extend my sincere appreciation to the members of this committee, and I appreciate the opportunity to discuss the reforms we have proposed. To help you, I am pleased to be able to provide each member of the committee with a table of concordance between the old and new acts. As I said, we have rewritten the act.
In conclusion, I think it's important to note that the changes are the result of years of hard work on the part of many governments, many individuals and many groups. Ontario's workers' compensation system has been beset by serious problems for many years, and this change we are proposing is certainly overdue.
Once implemented, these reforms will ensure that employees and employers in Ontario have an insurance plan for workplace injury and illness that operates on sound business principles and delivers among the most generous benefits in North America at a cost that is also among the most competitive.
Thank you, and warmest wishes in your deliberations.
The Chair: Thank you, Minister. We move now to the official opposition, to Mr Patten.
The Chair: Excuse me, sir. No, I am sorry. You are out of order, sir.
The Chair: I am sorry, sir. You are out of order. You will have to be removed from the room.
The Chair: We're going to recess for five minutes.
The committee recessed from 1551 to 1557.
The Chair: Ladies and gentlemen, we would very much like to continue with these hearings. The minister is here to hear the presentations from the opposition critics. If we can get this room settled, we would like to continue. The Union of Injured Workers, Mr Liversidge and Mr Seiler are on the agenda for presentations. We would like to be able to move forward.
The Chair: Ladies and gentlemen, please, with your indulgence, we have a number of presenters whose views we would like to hear. I think you yourselves are some of the presenters. If you could kindly take your seats, we will begin our hearings and we can proceed. I ask your indulgence in this regard.
Ladies and gentlemen, planned this afternoon, at 4:50, I see on our agenda is the Union of Injured Workers. If you will please take your seats, we can begin, we can hear the presenters, and that includes the Union of Injured Workers. Please take your seats, ladies and gentlemen.
The Chair: We would like to begin this committee, once again. We are now going to move to Mr Patten, who is the critic for the official opposition. Mr Patten, when you're ready, please.
Mr Richard Patten (Ottawa Centre): I want to begin this afternoon by expressing likewise my disappointment with the lack of time that we have had. We will have to hear many individuals, some of whom you've heard from this afternoon. Of course, this is really important because, as the minister has said, this isn't simply a series of minor changes to the WCB legislation, but is a complete rewrite of the act, a definite shift, of which everyone ought to be aware. In essence, employers are going to be paying less and the injured workers are going to be getting less.
I don't believe there has been a balanced opportunity for people to be heard. When Cam Jackson conducted his review, it's clear to me that most were employer groups that were heard from. I've had the opportunity to meet with various groups over the past couple of months to discuss Bill 99 and I am looking forward to hearing the presentations before us here in Toronto and around the province.
Mr Patten: Madam Chair, could they keep the door closed when someone is making a presentation.
I would like to give a brief overview of how I view the impact of Bill 99. As we all know, reorganization has already begun at the WCB, well before the bill has been debated in the House or has even been dealt with in committee.
The WCB implementation plan by the board itself indicates that "the most profound changes will occur in the front-line delivery of our services to injured workers and employers," and that's quite evident.
According to its own question-and-answer sheet which was put out by the board on its reorganization, it says, "In the past, little attention has been paid to managing health care for injured workers, especially with the view of returning them to work as early and as safely as possible, even before full recovery."
There is a in primary emphasis, from compensation to prevention of injury, yet I don't see anything in the legislation with respect to increased funding or the reallocation of resources for education and prevention of injuries in the workplace.
We also have the shroud of intimidation through the new "zero tolerance" policy for fraud. Although it isn't directly in Bill 99, it is still what I see as part of the agenda of the WCB reform. Recently introduced anti-fraud measures -- on May 16 -- are consistent with other Harris government attacks on the weak and the disabled. I'm not against attacking fraud, but we should attack it intelligently. I think the surveillance measures are aimed at harassing the little guy. They're going to be spending about $10 million for this new program. There were about four cases last year, out of 199,000 people.
We have heard from the WCB vocational rehab case workers that they are being privatized. What we have been told is this: "The traditional role of vocational rehabilitation case workers will change as the return-to-work requirements in the new legislation are implemented over the next two years. There will still be a role to arrange labour market re-entry assessments and services for injured workers who cannot return to work with their pre-injury employer."
I continue on, and this is from the board itself: "Some vocational rehabilitation staff may wish to enhance their knowledge and skills in the other areas of our business" -- in other words, they are going to be out of a job -- "for example, revenue, experience rating and adjudication in order to become a customer service representative." That's from the board.
Another example of privatization is the board announcement that it will outsource all of its investment management activities. Since the new management has compared the board to a large insurance company, some think that outsourcing its investment management activities is a strange move, as it is usually their core business.
The cut in employee benefits and cut in employer premiums in my opinion is a shell game where the employees lose. You're reducing workers' benefits from 90% to 85% of net average earnings, but these injured workers still have to cover increases in food, shelter and education costs. If they have children, they have to feed those children. How can they be expected to do this on a reduced fixed income? The reductions in the cost-of-living protection for almost all injured workers will take effect. It's estimated that if Bill 99 is implemented without amendment, there will be about $15 billion less paid to injured workers than is currently the situation and $6 billion being given back to employers.
We are seeing the dismantling of important parts of the system, such as the erosion of the independence of the Occupational Disease Panel by folding it into the board and having it report to the board, creating a situation of the possibility of less objective research.
Rights are being limited under the legislation and that is of concern to me; for example, the right to compensation for occupational chronic stress or putting restrictions on compensation for chronic pain, as well as mental stress. I understand this is to be defined in the regulations, which we have not seen yet.
Another example is the limiting of the appeals process by removing WCAT, the independent appeals system. The appeals tribunal must, under Bill 99, follow board policy. A whole level of appeal, one of the checks and balances, is being removed. What it means is there is a loss of a learning organization. The minister says she's prepared to entertain some ideas on that. I'm happy to hear that and we will have some thoughts and recommendations for you.
One of the most serious impacts of Bill 99 is the offloading of costs on to other systems. In 1996, of the 196,000 long-term disabled workers on WCB benefits, 6,600 had to turn to social assistance to make ends meet. While this is a relatively modest proportion, 3.4%, it's a lot of people and a lot of families. I think there is little doubt that there will be an increase in the number of individuals downloaded on to the welfare system as a result. It's also going to be much harder to get compensation as a result of Bill 99 and it will be harder for these persons to support themselves and their families on reduced pensions, many of which are bare bones to start with. Who will assume that cost? Municipalities and local taxpayers will be assuming the costs. The offloading on to other systems is ultimately offloading on to the people we have pledged to support in illness or in injury, or unfortunately in death.
Workers' compensation is supposed to be based on balance. It's not supposed to be one-sided, but this is the direction this government is moving towards. We welcome the opportunity to make the board function more efficiently and effectively for injured workers and, by extension, for employers. We all agree that workplace injuries serve no one. Injuries don't serve the employer or the workplace, nor do they serve the workers who are trying to earn a living for themselves and for their families. But Bill 99 has only in small part to do with meaningful reform of the Workers' Compensation Board and much to do with cutting benefits and programs to injured workers and the most vulnerable people in our province.
Bill 99 isn't about fairness or equity, nor is it about balance, the fundamental value upon which the act is based. It's about who pays and it's built on an ideological agenda that is somewhat mean-spirited and designed to blame the weakest in our society for all our problems. That's been the agenda of this government from day one. We have seen it in the cuts to hospitals, to our seniors, to our children, to our schools, and now the government is going after injured workers.
I personally am looking forward to the open public hearings on Bill 99 so that the government will hear real people with real concerns, the people whom this act was meant to serve, both employers and workers injured on the job. Thank you.
The Chair: Thank you very much, Mr Patten. We move now to Mr Christopherson from the third party.
Mr David Christopherson (Hamilton Centre): Thank you, Madam Chair --
The Chair: We'll try to keep the doors closed while you're making your presentation.
Mr Christopherson: No, that's fine. I appreciate the fact that enough people are here to tell this minister what they think about this legislation. That's what this is all about.
The minister ended her remarks by saying, "Warmest wishes." There's your response to you telling them, "Warmest wishes," as you're taking $6 billion and giving it to your corporate pals. It's not a wonder they're outraged. I told you in the House this would happen, and you all sat there and you said: "No, you're just full of a lot of wind, Christopherson. None of this really matters. People aren't that outraged."
There are two rooms out there overflowing with injured workers who are out of their minds with shock and anger that you'd do this to them, and you sit there and say, "Warmest wishes."
Minister, this whole process is a disgrace. I defy any backbencher to blame these people for coming out and doing what they're doing today after what you've done to them: four lousy days here while we're sitting in the House, six measly days out across the province, when you've rewritten the entire Workers' Compensation Act. That's a disgrace and an insult.
On Bill 49, a bill that you said was mere housekeeping and nuts-and-bolts changes, you authorized four weeks of province-wide public hearings. On a bill that you admitted today is a major rewrite and a fundamental change in the way we operate workers' compensation, you give six measly days across the province. You know why you did it? Because you're afraid to face these people. You're afraid to face these people in community after community because you can't handle the heat, and you ought to be ashamed.
Minister, continually here and in the House when I ask you questions, you always offer up the nice words about how fair your government is being and that you want to be balanced and you're reasonable, and the tone of your voice and the words you choose are so mellow and soothing. Let me tell you what you really think about the word "fair." We used to have the word "fair" in the WCB legislation. You took the word "fair" out of Bill 99. You took the word "fair" out of the definition of what this act is to do.
That's not the first time you've done it. You took the word "fair" out of your Ontario Labour Relations Act, Bill 7, the bill that you rammed through the House with not one minute of public hearings. You took the word "fair" out of that legislation.
This is not fair to injured workers but it sure is fair to your corporate pals, because while you took 5% out of the income of injured workers, people hurt on the job through no fault of their own, you gave 5% to your corporate pals -- $6 billion. How the hell do you sleep at night?
In addition to that, you have reduced by 50% the amount of money that's set aside for injured workers' pensions. That's what injured workers got. How did you describe your legislation? "Generous." How the hell is taking 5% away from injured workers and giving it to your pals and cutting by 50% the amount of money you set for pensions for injured workers, who are already among the most vulnerable in our society -- how do you call that generous?
I'll tell you, if I were one of your corporate pals getting a nice piece of that $6 billion, yes, I'd think this was wonderfully generous legislation and I'd be out in droves to thank you for what you're doing. But if I were an injured worker, instead of being an MPP, I'd be in that crowd with these people right now, because they've got to take you on, and I back them up for taking you on.
You've taken the Occupational Disease Panel, one of the most successful pieces of improvement we've been able to do in this province over decades, and you've killed it. I've read into the record letters from around the world, from organizations, experts -- not political people, not union people -- academics, scientists, people whose lives are dedicated to the profession of preventing workplace accidents and illnesses, and they're all but begging you not to do this, because they hold it up as an example of what ought to happen. You're killing it.
I represent thousands of steelworkers and auto workers in my community of Hamilton-Wentworth. Gord Wilson, as president of the Ontario Federation of Labour, represents hundreds of thousands of steelworkers and auto workers whose lives are put in jeopardy by what you're doing. How the hell do you call that fair? Where's the fairness? Where's the fairness to at least hear people out?
You said you're going to take into consideration suggestions that are made about WCAT. We know you've been getting pressure from businesses to change your legislation on WCAT. That's why you're open-minded to it. Why don't you tell these injured workers that you're open-minded enough to consider changes to your 5% takeaway from the income of injured workers? Why don't you tell these workers that you're open to the suggestion not to take away 50% of their pension entitlements? Why don't you tell injured workers that you're open to suggestions about not killing the Occupational Disease Panel?
Minister, you're a disgrace. This government is a disgrace. I and the NDP and all the injured workers and the Ontario Federation of Labour are going to fight you every step of the way, six days or 60 days, right across this province. You will rue the day that you introduced Bill 99.
L.A. LIVERSIDGE AND ASSOCIATES LTD
The Chair: Ladies and gentlemen, we will now move to our first presenter of the afternoon. The committee welcomes Mr Liversidge from L.A. Liversidge and Associates Ltd.
The Chair: Ladies and gentlemen, I ask your indulgence. It is very important that presenters, whether they're for or against the bill, have a fair and open opportunity to come before this committee and make a presentation.
The Chair: Ladies and gentlemen, please, I ask your indulgence. You are in the Legislature of the province. Kindly respect the traditions and rules of this institution.
The Chair: Order, please. Mr Liversidge, we welcome you this afternoon. We look forward to your presentation.
The Chair: Order, please.
Mr Liversidge, welcome. We appreciate your taking the time to come before the committee this afternoon. Your presentation time is 20 minutes.
Mr Les Liversidge: I was going to preface my comments today with this statement, saying that one can expect a vigorous and aggressive resistance to workers' compensation reform. I guess I should go back and rewrite that a little bit.
All three governments that have attempted to reform workers' compensation in this province over the last decade and a half have experienced concern, have experienced fear from injured workers, and I can understand where that fear can come from. But when one looks at the improvements and enhancements that have been made and one gives an honest assessment to Bill 99 -- and I don't intend to speak the loudest here perhaps today, but I have considered my thoughts very carefully over the last several years and most particularly since Bill 99 was introduced -- and if one considers Bill 99 carefully, it really does, in my opinion, represent a maturing of reforms initiated by all three political parties, from the Tory Bill 101 in 1984 to the Liberal Bill 162 in 1989 and the NDP Bill 165 in 1994.
I think it is fair to say there is a thematic connection. That connection, in large measure, can be found in an increased employer and worker accountability coupled with a higher expectation in Bill 99, a worker/employer/board cooperation. That is, in my view, a central theme of this bill that ought to be supported and lauded and one that represents the direction of reform of workers' compensation in this province over the last decade.
However it's also my view, with this as with other reform packages and likely with any other controversial piece of legislation, that there are areas to improve this. It's my view that there are actually several serious problems within Bill 99, some perhaps powerful enough to undermine some of the government's reform goals and some that have the potential to enhance some old inequities and potentially create some potent new inequities.
The package I have presented to this committee is written as a detached and impartial analysis, non-partisan in flavour, with no side favoured. My aim is to focus on areas that require attention and the need for improvement. I heard some of the comments from the gallery and I think it is important and that people would be wise to stop and listen, because there are some important views that can be expressed that can assist in some positive adjustment of this bill.
In the materials I've placed before this committee I have set out what I think are five critical areas that ought to warrant some additional attention. I'm only going to be focusing on one of those here this afternoon. I will touch on the other four ever so briefly, but I would encourage the committee to review my materials in detail.
The first deals with changes to the wage loss scheme. It is my view that Bill 99 masterfully calibrates many of the shortcomings of the wage loss process, requiring benefits to be adjusted as the worker's circumstances adjust, a basic simple principle, yet one lacking since wage loss was introduced seven years ago. However, it is also my view that Bill 99 confers an extraordinary discretionary power on to the board which may lead to unfair over- or undercompensation and a proliferation of appeals. For example, the bill allows the board to deem a worker's earnings, if a labour market re-entry plan for the worker has been fully implemented, without defining what is meant by "fully implemented." The government's intentions, in my opinion, are lost in that vague language and I would suggest a second look to that.
The bill also focuses on the duty to cooperate for both workers and employers. I think that's a positive innovation, but in my view some unfair and unneeded new legal requirements for both workers and employers are created, and on that as well one I encourage a second look.
Assessment rates: Bill 99 provides a very broad discretion to the board in setting individual company assessment rates, yet individual disputes are not allowed to proceed to the appeals tribunal. This is unfair and must be changed.
Stress: Bill 99 removes the board's jurisdiction to consider claims for chronic occupational stress which will, in my view, open the doors for needless courtroom action. It would be preferable to set out in very strict language what the entitlement criteria are and have the board determine these cases.
My main concern, though, and what I want to spend most of my time on deals with an issue the minister introduced a few moments ago, and that is the operation of the appeals tribunal.
Bill 99, from my reading of it, compels the tribunal to follow board policy even if that policy is unfair or wrong. This is a very serious mistake that will assuredly lead to injustices.
While it is clear that the government wishes to ensure that the board of directors remains in control of the policy agenda, this can, in my opinion, be accomplished without eliminating the important policy audit function of the tribunal. I have presented for the consideration of the committee 10 principles which I would suggest you consider to achieve that.
It is my view that a certain mythology has emerged over time concerning the tribunal, embracing the mistaken notion that it's somehow unchecked and through its own initiative has improperly expanded the scope of the system. The tribunal has been unable to shake that notoriety even though a cool analysis proves this not to be the case. In fact, in my paper I've highlighted several examples that show the board is more culpable in that area than is the tribunal.
It also seems forgotten --
Mr Liversidge: I'm in your hands, Madam Chair. Should I continue, stop, slow down or what? Do I get a minute on my time? Yes? I'll take a minute on my time.
It also seems to be forgotten that the tribunal has issued innumerable decisions that have resulted in reduced employer taxes and fines where board policy called for unfair levels of employer taxation. Again, in my package to you I've listed several examples of those.
It is my considered view that a curtailment of the tribunal's power will ensure that the very real and legitimate pressures that gave rise to the tribunal in the very first place will return. Policy development will be rendered effectively dormant and the only remaining avenue for policy reform will be through endless political action.
Effort must be focused on depoliticizing board decisions as much as possible. My case, I think, is made somewhat today. This is done, in my opinion, through ensuring a scrupulously fair and detached appeal process. I don't intend to suggest for a moment that the board is somehow uncaring or insensitive. I simply recognize that workers' compensation administration is a busy and congested thoroughfare. There is simply no time within the board's processes to pull over to the curb and carefully scrutinize the correctness of individual policies as they apply to individual and unique situations.
It must be recognized that the board will not always get it right. In fact, it is my view that it is very much to the benefit of the board to have the tribunal test its policies through a very sophisticated and fair legal method. Even the best-intentioned and most capable Workers' Compensation Board of directors, with the crowded business agenda they face, would not be in a position to initially consider the multitude of policy issues that arise in this complex system, let alone review them over and over again as disputes arise.
Two years ago, when appearing before the royal commission, I said: "While the system may be more complex, the WCAT set in motion a dynamic process of law reform that not only ensured individual cases would receive a higher standard of justice, but significant and contentious issues would be openly debated. The individual claimant, be it employer or worker, now had an opportunity, based exclusively on the merits of the case, to access and positively influence the policy agenda." These sentiments remain valid today.
The establishment of the appeals tribunal, by a previous Progressive Conservative government, it must be remembered, was farsighted and likely the most significant and positive adjustment in contemporary system design we have seen. The tribunal should not be viewed as some foreign adjunct to the system that interferes with the business of the board, but instead as an integral feature of the scheme, offering insight, balance and informed reflection.
It is preferable to have contentious issues fully canvassed and debated within the confines of the workers' compensation system than have the debate continuously spill over to the political arena. I can assure you I had nothing to do with the demonstration to demonstrate that point very vividly here today.
The tribunal allows issues to be addressed on their merits, not on their public relations potency. I have offered a set of 10 principles which, if adopted, I believe will satisfy the need to have the board maintain ultimate control over policy but ensure that inequitable policies are set aside and the system gets to the right answer.
The tribunal should be required to refer contentious policy issues with suitable recommendations directly to the WCB board of directors, which will then quickly review the matter. This way the board keeps control but the claimant has a chance against unfair policies. Throughout, this process should be conducted in as public a forum as possible.
In my opinion, dynamic and thoughtful policy development can only be achieved with the assistance of a scrupulously fair and detached appeals process. I encourage the committee to carefully review these comments and consider recommending appropriate change. If I may be so bold, while there may be some other issues, this is one area where I believe a reasonable consensus can emerge.
Thank you very much, Madam Chair. Those are my comments and I think there's some time left for questions.
The Chair: Yes, we have about two minutes per caucus. We'll begin with Mr Patten from the official opposition.
Mr Patten: I appreciate your presentation, Mr Liversidge. You suggest there will be an increase in litigations because of external factors, general law etc, that the board itself may not be in tune with. The way I see it is that the tribunal is in a sense the front line dealing with the reality of a case. On that basis it learns what is required, what is fair and what is possible, and therefore is what I call crucial to the learning of that organization. Every organization evolves and changes over time. If that's not the case, then I think we're going to be in for one hell of a tough time. As you suggested in your paper, it will only lead to all kinds of other ways of dealing with trying to get around what will be perceived ultimately as unfair. Is that the way you see it?
Mr Liversidge: I don't know if I fully understand the question. The tribunal itself leads to a fair amount of litigation in and of itself. I don't think there's any mistake about that.
All I'm suggesting is that you have to look at what it is the tribunal delivers. It delivers a little bit more than just a sounding board, although it does do that. It delivers a little bit more than just an educational process, although it does do that. What it also delivers is a certain standard of integrity, a certain standard that takes some years to develop. I think the present appeals tribunal has developed that, has earned that. I think it has sustained that over a period of time. It is time to look at perhaps some design adjustments, but that integrity, where even if you disagree at the end of the day -- and not everybody agrees. If there are two people going into that and there's one answer coming out and they're polarized going in, there still might be a disagreement at the end of the day. What the tribunal has to deliver, what the process has to deliver, is that the claimant is satisfied, be it worker or employer, that they had a chance to put their case forward and that the case was fairly and appropriately considered.
There is going to be all sorts of litigation coming out of Bill 99 for the same reasons there was a lot of litigation coming out of every other change in statute, every other change in process, because there's going to be a certain period of time when you're not quite certain what these changes in policies mean. That's not a problem. I've got no quarrel with that. I think, though, that when you do have a bit of a dustup on a case, what this law means, what this policy means, something positive ought to come out the other end. The positive, the value added, is the greater understanding that you speak of, but that's only possible if it's delivered through an institution that has a high standard of integrity, where people who, losing, think they got a fair deal.
Ms Frances Lankin (Beaches-Woodbine): There are two areas that I would like to ask questions on if I have time. Let me begin with your comments on the tribunal jurisdiction, though. I guess you and I were both around in the very early days of the tribunal. You've outlasted me. I think the points you make are very important with respect to the role of the tribunal, due process, independent and with integrity, a place for reviews.
As I listen to your arguments and most of the principles you put forward, I think I could be in agreement with you on all of them, and yet at the very end of it you still suggest that the process should go back to the board for confirmation or not of board policy and the final say.
If the principle is that you can only get justice if there's an independent review of how an institution is implementing the law of the land, and if their policy is deemed by an independent, quasi-judicial review to be in breach with the faith of the legislation, the intent of the legislation, why would you hand it back to the board in the final analysis to have the final say?
Mr Liversidge: That's a very good question and there are several answers to that. I'll take a few minutes to look at that.
One of the reasons is that the tribunal deals with only the very narrow issues of the case itself. The other reality which we've discovered over the last 12 years is that there's not always an immediately apparent right answer. It doesn't jump out at you. It doesn't come out and say, "Hey, that's wrong; this is right." In fact, the experience of the appeals tribunal has shown that the right answer, if you ever do reach a point of actually having the absolutely right answer -- I think it's probably best to describe it as the best answer. The best answer takes a period of time to emerge even out of the tribunal. One case doesn't do it. Two cases don't do it. Several cases tend to do it.
The idea that then you would have an appeals tribunal dealing with a very narrow issue, speaking to that, and then that becoming the binding policy on the part of the board I think would be inappropriate, would be wrong, and it would be wrong for several reasons.
It would be wrong because it doesn't allow for and consider the opportunity for all of the other processes that are involved in workers' compensation to get in line and to get in sync with the emerging thinking the tribunal may develop. I think it's appropriate for that to take a period of time. When you introduce a new reading of an old law or a new reading of a new law, it's going to take some time for the tribunal to acquire, firstly, an institutional expertise on that and, secondly, an institutional viewpoint that has integrity and credibility. The third part of the process, which I think is incredibly important to sound workers' compensation protocols, is that the public, the people involved, have to have an opportunity to learn during that process as well.
Having things go back to the board ensures a higher standard of overall stability. There have been too many cases, too many instances, where there have been divergent points of view coming out of the tribunal on the same issue, where one set of decisions may speak and say, "This is the best answer or the right answer," and another set of decisions may speak and say, "This is the best answer or the right answer." I think the board ultimately has to be charged with that responsibility.
What I am saying is that the best model, and I think the original design as well, the original thinking -- and I don't think the current model works all that well; I think practice has shown that. The initial thinking, the best design, is so that these two important institutions work in tandem, work in a more synchronized manner so that collectively and together they come to the same or best answer. To me that's a far preferable way to do it rather than simply one saying, "This is the answer," and the other one saying, "We disagree," or the reverse. It hasn't worked. It creates an unworkable tension. It creates a tension that does not assist in sound policy development.
Mr Bart Maves (Niagara Falls): Thank you for your presentation, Mr Liversidge. Continuing on in that vein, how would you assure that the to and fro between WCAT and the board with regard to discrepancies in policies would occur?
Mr Liversidge: Would what?
Mr Maves: You'd prefer to have WCAT not just have to adhere to the policy of the board.
Mr Liversidge: That's right.
Mr Maves: How would you have that to and fro --
Mr Liversidge: Specifically what I've suggested is that some disservice is done to workers and employers if you have effectively two parallel systems of workers' comp, with the same set of facts getting significantly divergent treatment depending upon what track you happen to end up on. I think that's a problem.
My 10 principles suggest this: Always the tribunal has to, when it renders a decision, respect what board policy is. However, when it identifies through exposure to a case that there is something wrong with board policy -- and I'm suggesting more than simply that the law is wrong; I'm suggesting that there are a lot of board policies which may be quite legal but still somewhat unfair -- if the policy is wrong in law or unfair or unreasonable, the tribunal can construct its best case, get that through the chair of the tribunal to the board of directors, and they would have an opportunity to look at that and tell the tribunal, "We agree; we've got some changes here," or there would be some dynamic process going back and forth. To me that makes some sense.
The difficulty is the present system. Since I guess about 1989, they just simply started to ignore what the tribunal said. They said, "Forget it." I don't know the reasons for it, but when there were those divergent viewpoints, nothing happened about it. Even now we could trace back a series of decisions. In my paper I've outlined several dealing with employer taxation issues where the tribunal is saying, "The policy is best this," and the board is still saying, "Well, no, we'll still overtax employers." That's wrong.
I'm suggesting a process that simply says: "Hey, listen. If there's a divergent viewpoint here, figure it out. Get together on the quality of the argument, on the quality of the case, on the quality of what the facts say and what the best answer is." These aren't easy questions; these aren't easy things. These aren't things where there is a readily right answer. It takes some intellectual effort to come up with the best answer in some of these very complicated cases.
The Chair: That concludes our time for you this afternoon. Thank you for your very comprehensive package. We'll read it with interest. We thank you for taking the time to come before us this afternoon.
The Chair: Is Mr Seiler present? Sir, are you Mr Seiler? Would you please take your seat at the place where the microphone is turned on. Welcome to our committee.
Mr Scott Seiler: Thank you very much. It's certainly an adventure out there. Today I'm speaking on my own behalf, not on behalf of an organization, simply because we didn't have an idea that the hearings were going to be happening and never had a chance to do any kind of formal presentation. I don't have any documentation to hand out at this particular time, but I would like to touch on a few issues that are very, very important to people with disabilities in this province.
I think the first one will be the issue of the diminishing amount of places where people with disabilities are going to be able to go for income supports and rehabilitation in the near future. We are seeing the CPP act and the program being diminished in its size and scope: who is eligible and who is not. We are seeing the new Ontario benefits program introduced last week in the same boat, where very, very few people are going to be able to get any kinds of benefits. Now we're beginning to see that happening with the Workers' Compensation Board.
I'll be very honest. I'm very, very afraid for the people who are on all of those systems. One of the major reasons for that is because the people who are on these systems depend on not just one of the systems; usually it's many systems. For instance, a person who's on WCB will also be asked to be on CPP and could even get a top-up from the old FBA system and now the new system. That's if they're going to be eligible for any of them.
I'm afraid that injured workers are going to for the most part be left on social assistance in Ontario Works and, for that matter, be subject to workfare whether they can work or not. There are absolutely no guarantees in any of the legislation or anything we've been able to see that will make sure that people will be retained on pensions. People are losing 5% of the pension that they do have, which is a tremendous problem for a lot of people in this system simply because the system is already not paying people enough before the deductions simply because of things like the Friedland formula and the diminishing pensions as time goes on.
I also have some very, very serious concerns regarding the entire issue of an employer having access to medical files of an employee. I think that's reprehensible. There is absolutely no need for the full file from a medical practitioner to be open to an employer. There's absolutely no need, and I would hope there will be a charter challenge about that. I would suspect it will win too, because that is an absolute breach and there is no need for an employer to have that full medical file.
In fact if the employer has that full medical file, the chances are there's going to be tremendous discrimination. Even when it was just a very simple injury and something that was not even serious, there could be some other things in that person's life that have the employer discriminate against that person. It will also make it much more difficult for people in the future to get jobs when they are on compensation, simply because any new employer will just say, "I want access to that information as well." That means they will get that access and that will block injured workers from getting any kind of a job in the future.
I also have problems around the whole area that the pensions are going to be diminishing over time, as I mentioned, with the Friedland formula. That has been enhanced and brought forward in the new system that is being proposed in Bill 99. I think it really needs another look-see. We came out very strongly against that formula the first time it was put into effect with the last government, and I will strongly say that that has to be looked at again because pensions diminishing over time will not end up helping anybody. What you will end up with is people dependent on about four or five different systems and possibly even only one, if they survive on the system at all, and that would be the Ontario Works program here in the province.
I also would like to say that injured workers must have a voice on the board that is going to oversee the services for injured workers. There must be consumer representation. Why you are getting what you are getting outside is because you are refusing consumer representation on the Workers' Compensation Board. If you let workers on and have them on there not as tokens but as active participants in this system, you will have a much, much better system than you will if you only have employers or government people, appointees, sitting on the committee.
Like I said, I have not had a huge amount of time to prepare -- we were very much told at the last minute that these hearings were going to happen -- so I'd like to open it up to some questions.
The Chair: Thank you very much. That was a wonderful start. We will go to the NDP caucus for questioning.
Ms Lankin: How long does each caucus have?
The Chair: We have about 12 minutes, so that's about four minutes per caucus.
Ms Lankin: I appreciate your presentation and I want to explore with you the concerns you were raising about persons with disabilities or injured workers as to where their income support and support for rehabilitation will come from in the future. You cited stricter eligibility criteria for CPP. We haven't seen the eligibility criteria for the new Ontario family benefits disabled plan but we saw some early drafts and proposals of that which caused great concern in the disability community. The regulations for that will be forthcoming and there's a lot of fear that there are going to be, as you say, stricter eligibility criteria, and then the sorts of things we see in this bill.
Particularly, I want to raise the issue of the way in which the bill, for example, cuts out certain areas from compensation altogether, like chronic stress, and puts limits on other areas like chronic pain with "normal healing time." It seems to me that there are people who will potentially have multiple problems, who will find themselves ineligible in all these areas. I wonder if you could address that, and specifically these two sections of Bill 99 and the impact you think it's going to have.
Mr Seiler: The two sections that you're talking about are the ones on occupational stress and illness --
Ms Lankin: And chronic pain.
Mr Seiler: -- and I think that that will really play a huge part. What's going to end up happening is many of the people who will go for the different types of services -- only people with significant disabilities are going to be allowed, so if the disability at the time is not considered significant to the social assistance system, it will not actually be allowed to be put on the system. If it is severe enough, the chances are the person won't be able to work anyway and they will be on a system for life.
Actually it's kind of interesting because the new system that they are putting together right now here in the province is one of permanently unemployable. All they've done is drop the name, but the truly unemployable people will be remaining on the system. It's going to be very difficult for people to get access to these systems that are coming up, especially with the categories that are now not going to be recognized by WCB.
What these systems usually do, whether it's the new welfare system or CPP, is rely on what other systems also say are eligible and not eligible criteria. So the one system feeds on the other system which feeds on the other system. When you get denied in one, the chances of you being eligible for any of the others are going to be next to nil.
Ms Lankin: Thank you.
The Chair: Mr Christopherson?
Mr Christopherson: That's fine, thank you.
Mr Maves: Thank you very much, Mr Seiler. I apologize. I missed at the beginning your affiliation and how many dealings you have with the WCB.
Mr Seiler: My affiliation is with the Income Maintenance Group, but I'm not here actually formally representing them today because we did not have enough time to put together a formal presentation. I thought it was still very important to come to the hearings and say something in support of injured workers.
Mr Maves: Okay. In the discussion on chronic mental stress, Bill 99 confirms the existing board policy by excluding chronic mental stress. From the conversation you had with Ms Lankin, you clearly disagree with that exclusion?
Mr Seiler: I think that people have tremendous mental stress these days in the workplace, especially anybody who happens to work in any form of high-stress job where there would be a lot of pressure all the time, and also with the number of people that are having to work 80 or 100 hours a week and doing two and three different jobs in a company and only being paid for one. I think that stress is a very, very big factor in today's workforce and it's very much of a disabling factor for many, many people today as well.
Mr Maves: Thank you. I just wanted to let you know that on the functional abilities form there is in no way whatsoever a requirement for someone's medical file to be transferred to an employer. It's a one-page form that talks strictly about the injured worker's capabilities. I wanted to let you know that.
Mr Seiler: That's actually not what any of the legal representatives I've been able to talk to in the last couple of days have been able to tell me. They say it will give the employer direct access to the person's full medical file, not just their WCB file.
Mr Maves: That's not true. It's a functional abilities form and it's very restricted to the capabilities of an injured worker.
The Chair: Mr O'Toole, did you want to go forward with a question?
Mr John O'Toole (Durham East): Mr Maves has made the point that the medical record is functional abilities.
Mr Patten: Working in the area of income maintenance, what was your reaction to the 5% cut in benefits?
Mr Seiler: I think the 5% cut in benefits is going to very much hurt many, many people who are collecting WCB. It's a myth that many people make extraordinary amounts of money on WCB, just the same way as it's a myth that people make extraordinary amounts of money on family benefits or on general welfare.
I think one of the things that is very important when you talk about that is the kind of standard of living a person is going to end up having. Will they be able to pay their rent? Will they be able to buy the necessities of life? I'm afraid many injured workers will not be able to do that with the 5% cut, because they are not making very much money to begin with.
Mr Patten: On the issue of medical records, the minister said she was prepared to listen to ideas, so I hope you take a look at the form. But I understand that the board would still be in a position to change the nature of that form at any particular time, that it's not really in legislation. In my opinion, that is one of the weaknesses of it. When you look at the form you may find it looks all right today, but who knows? If the board decides that it wants to pare some of the benefits it gives out to save money, you can redo this form. Is that your view as well?
Mr Seiler: Anything that's in regulation is highly changeable, and I'm afraid that there's too much in regulation in this bill and many other bills the government is presently working on. In fact there's so much in regulation in much of it that the government can change it with a few weeks' notice at any particular time for anything in any of these bills. The Workers' Compensation Act is not any different as far as that's concerned.
The Chair: Mr Gerretsen, did you have a question?
Mr John Gerretsen (Kingston and The Islands): I think section 37 is quite clear when it states, "Every health care practitioner who provides health care to a worker claiming benefits under the...plan...shall promptly give the board such information relating to the worker as the board may require." That presumably doesn't have anything to do so much with the current form, but whatever they decide in the future they require, they're going to get. That could include the entire medical file.
Mr Seiler: Absolutely, sir.
Mr O'Toole: Mr Chairman, if I could clarify --
Mr Christopherson: He's out of order.
Mr O'Toole: Mr Gerretsen is referring to the wrong section. The actual section dealing with functional abilities is subsection 21(5).
Ms Lankin: Mr O'Toole, that's the section he's talking about. Section 36 is what the presenter's talking about. You guys are trying to get it off on the functional abilities form. That's not what people are concerned about. It's sections 36 and 37. Ask and answer that.
The Chair: If I may, Mr Seiler, thank you very much for coming this afternoon. We appreciate your taking the time to share your thoughts with the committee.
UNION OF INJURED WORKERS TORONTO INJURED WORKERS' ADVOCACY GROUP
The Chair: Our next presenter is the Union of Injured Workers, Mr Biggin. Are you here, please?
Mr Phil Biggin: I have two other people presenting with me.
The Chair: I see. All right. Welcome, Mr Biggin. Please introduce yourself and your organization and your associates for the record.
Mr Biggin: Thank you very much, Madam Chair. I'm Phil Biggin, executive director of the Union of Injured Workers. With me are Marion Endicott and Alberto Lalli from the Toronto Injured Workers' Advocacy Group, which works very closely with us.
The Union of Injured Workers, in association with the Toronto Injured Workers' Advocacy Group, welcomes the opportunity to appear before members of the standing committee on resources development. We do not appear here, I might add -- and I've made this very clear in all the speeches I have given -- in place of the many injured workers who have been requesting standing before the standing committee.
Bill 99, the current government's proposal to change the Workers' Compensation Act and restructure the Workers' Compensation Board, represents the most drastic change in 82 years.
In 1914 Chief Justice William Meredith, with the agreement of unionists and the manufacturers' association, proposed an employer-funded no-fault system to be administered by an independent agency. Injured workers would be assured security of benefits in return for giving up the right to sue their employer: the historic compromise.
Over the years, this system has been reformed, sometimes for the better, sometimes for the worse, but always in the past governments have been willing to listen to injured workers.
In the 23-year history of the Union of Injured Workers, injured workers had the following opportunities to interact with politicians of all three political parties: 1975, a meeting with the cabinet of Bill Davis; 1980-83, meetings with Tory Labour Minister Bob Elgie in various types of community-type meetings; 1984, Labour Minister Russell Ramsay, also a Conservative, spoke to the injured workers on June 1, after the first major June 1, which occurred in 1983; 1988, Labour Minister Greg Sorbara appeared at two community-based meetings organized by the UIW and TIWAG; 1991-93, Labour Minister Bob Mackenzie spoke at June 1 celebrations; 1995, Labour Minister Shirley Coppen attended a community meeting of 250 injured workers on St Clair Avenue. I can tell you that Labour Minister Coppen was quite nervous when she walked into that room, but as we did when we had the presentation before the royal commission on workers' compensation, we guaranteed that order was kept throughout that meeting, and injured worker after injured worker gave their presentation and explained what this was all about.
Why people are so angry today is because you have refused on numerous occasions -- on two different occasions in Toronto, we brought petitions to your office and requested meetings and we were told by your staff that only a majority of up to three people would be allowed to meet with you.
The Chair: I have to ask you to take your banners to the back. You are using up presentation time that will be lost. Thank you.
Mr Biggin: This government has not been willing to meet with injured workers as a group. On every occasion, except when the Union of Injured Workers organized a meeting in Burlington, which Cam Jackson had no choice but to attend, we have been told that we could only meet with the minister if it was one, two or three representatives.
You know from your own statistics with the standing committee that 700 injured workers in the Toronto area have applied for standing before the committee. Many more we know of who have told us they sent in their applications have not even heard back from this committee. These injured workers will not get a chance to speak on how Bill 99 is going to affect their lives, how it's going to affect their families, how it's going to affect their children and their grandchildren.
We have studied Bill 99 and Minister Jackson's paper. We have made a number of submissions. We are prepared to make submissions on Bill 99, but we don't believe you would be able to understand that until you have heard what the injured workers, who have suffered their blood and sweat, who have suffered through injury and insult, who have lost their families, who have lost their jobs -- you would not understand what our presentation meant until we hear from those injured workers.
So we will not be making a formal presentation, as we have in every presentation before the standing committee before today. We will not be making a presentation until our injured workers have the opportunity to meet with the standing committee and with you, Madam Minister, to express their concerns about Bill 99.
Also, injured workers will be speaking across the province, whether it is formally to your committee or whether it is like today, through a mass action. Workers across Ontario are enraged that while the economic situation at the Workers' Compensation Board improves, you are robbing, like pirates, injured workers' benefits: $9.3 billion due to the deindexation; $15 billion in total. This is a disgrace, an utter disgrace.
We will now take the balance of our time to introduce to you the individuals who have not had the opportunity to appear before your committee.
Ms Marion Endicott: A small sampling of them.
Mr Biggin: Yes, not everybody.
Ms Endicott: First, we'd like to call Anna Rizetto. Anna has spoken to this committee under previous governments. She wants to speak to you. Also, she is severely disabled and unemployable. Can you call Anna, please, Alberto? We need the door open; that was the arrangement. They know. We have it arranged and the crowd will be quiet while these people come in.
The Chair: The reason we're keeping the door closed is for quiet, so we can hear. If she can come in and the doors -- then that's not a problem.
Ms Endicott: We have to let the people in. We weren't able to arrange to get the people in. I tried to get out there previously to prearrange it and I was not able to get out.
The Chair: As long as we can hear, it's not a problem. It's okay.
Ms Endicott: Anna Rizetto, although she is severely disabled and unemployable, is one of those people who was not qualified for the special supplement approved by a previous government. If you were to listen to her, you would better understand the difficulties of living on a very restricted income and you would better understand the severe implication of not reintroducing full cost-of-living protection for injured workers.
Mr Alberto Lalli: Miss Teresa Kesek wanted to speak to this committee on the specific problems of new immigrants. Although well educated in her own language, she didn't start a claim because she didn't know English and she didn't know about the system. She was advised years later and put in a claim about three years after the accident occurred. Her accident was granted and benefits were coming. The new bill you are putting on and the new system you are trying to create will mean that this woman, even though she was legitimately injured on the job, would not get even initial entitlement with this new bill.
Ms Endicott: If Dante Lerra is here, could you please stand up and come forward? Mr Lerra was a mechanic who kept working despite his injuries, through many years. As a result of continuing to work, he increased his injury to such an extent that he could not continue to work, but by then much time had passed. Because there was no time limitation on putting in claims or appeals, he was nevertheless able to pursue his claim and he continues under that process. Under Bill 99, he would not be able to pursue his just claim. Why? Because he was a persistent worker, because he continued working despite his pain.
Mr Dante Lerra: I used to work all the time with the pain. After surgery I went back to work; I asked the doctor to do it as soon as possible to go back to work. But since 1992 I can't do my work any more. I went to Compensation because I got hurt on the job and Compensation says, "You have to go with Employment." Then to Employment, I say: "Employment is going to be finished. What am I going to eat?" He says, "Well, you go on welfare." That's what the adjudicator told me.
Mr Lalli: Mr Eddie Cauchi is a well-known individual to many people. He worked at Johns-Manville for about 25 years. What he got after that was asbestosis. He is the chair of the Asbestos Victims of Ontario, and as the chair he fought for many years for the independent studies of occupational diseases, first with the royal commission on asbestos and then with the Occupational Disease Panel. If he had had the chance, he would have spoken to you about the destruction of the Occupational Disease Panel and how this new Bill 99 will send all the injured workers suffering from different occupational diseases back to the age when they -- the same as the asbestos victims of Johns-Manville.
Ms Endicott: Next we have Mr Max Bryant. Max, will you stand up? To be denied the opportunity to speak to this committee is the second time Max Bryant will be denied the opportunity to speak to this government. He was one of the people who spent many hours preparing a speech to the Honourable Elizabeth Witmer and then, at the last minute, when he went to attend the meeting, the meeting was cancelled. Now he is not able to make a presentation again.
Max is a survivor of six accidents at work, including a blast, before he simply could not continue to work any longer. He wanted to work so much that he even went to work tending his blast furnace with a slipper on instead of his safety boots, because the safety boots would not fit over his swollen foot.
If Max were given an opportunity to talk to you, what he would talk about is the problem of putting the return to work in the hands of the employers themselves. Putting this whole business of self-reliance between employers and workers simply will not work. It will be an abuse of injured workers.
Mr Lalli: Mr Domenic Acierno: Mr Acierno is concerned about the future of injured workers. If he had had the chance, he would have spoken to you about what this bill would have meant to him. In his own words, when he had his compensable accident, if Bill 99 had been in place he would have been cooked. For one thing, he owes the recognition of his condition after many years to the independent WCAT. Mr Acierno would like you to understand the realities of invisible injuries or chronic pain and how difficult it will be -- I mean impossible -- for injured workers to be covered for conditions when the WCAT loses its independence.
Ms Endicott: We're already quickly running out of time and we've only gone through, I don't know, one eighth of the injured workers we were hoping to call in today. I'll just begin to read out their names.
Mr Xinos is here. He wished to speak to you about the incredible devastation of not having the cost-of-living increases back on to the pensions.
Mr Lalli: Mr Giovanni Fuoco, who is receiving a supplement under section 147(4) plus the $200 supplement given by Bill 165, and he was protected from the indexed section of the Friedland formula. With Bill 99, he loses that protection.
Ms Endicott: Mr Chuck Murray, who fell six storeys when he was 18 years old as an apprentice. It took the independence of the Workers' Compensation Appeals Tribunal to establish what his earnings basis should be, despite board policy.
Rodolfo Cuzzetto: He cannot be here today because he died of lung cancer in 1985. His family only received compensation a year ago and they wish to speak to this committee about the problems of getting industrial disease recognized.
Mr Lalli: Mr Mario Cerra: He wanted to talk to you about the problems of returning back to work before injuries heal. It happened to him. He was re-injured and his disability was even worse. Bill 99 will make this commonplace.
Ms Endicott: Mr Banni Bhattaharjie, Mr Generoso Ardente.
Mr Lalli: Mr Jerry Sewerynek.
Ms Endicott: Mr Nick Damianos.
Mr Lalli: Mr Louis Sotiropoulos, who had an accident and didn't report it because his employer asked him not to do it and paid for every day that he will stay without doing anything in the work. The problem is that he developed a permanent disability. He would like to speak to the committee about -- Bill 99 will be doing exactly the same that happened to him.
Ms Endicott: Barbara Pyczot -- most of these people are stuck outside, that's why they're not coming forward -- and Manuel Espinal.
Mr Lalli: Mr Ivan Mejia, another one who was an immigrant one and filed his claim two years after the injury.
Ms Endicott: Antonio Sciciliano: Antonio was working here for 32 years and had many accidents as well. He also, like all these other workers, very much wants to come to speak to you. I believe he might be one of the few who actually has a number in response to the letter that he wrote some time ago requesting a hearing. He would like to talk to you about the financial troubles of the WCB and how it is that there is a bank account of $8.5 billion.
Mr Lalli: Dimitri Petropoulos, Charoula Theofilkidis and Ana Pavela: All of them appealed the decisions past the limitation period that Bill 99 is putting in place. That means that if Bill 99 would have been in effect in their cases, they wouldn't have gotten any benefits.
Ms Endicott: I've finished mine.
Mr Lalli: Mr Constantine Parlanis and Matt Mandziak, also affected for limitation of appeals.
Mr Biggin: That's just a very short list of workers who have asked to present before the committee and would certainly like the opportunity to speak to the Minister of Labour about their views of workers' compensation and the reform in Bill 99.
We're very serious about these reforms. We've been working on this system for 25 years now and we don't like the fact that there's a total of probably less than 10 hours in Toronto to hear the concerns, and only half of those are going to be what we would say were labour reps or injured worker reps. Where does that leave the injured workers? This is what the system is all about. This is what Sir William Meredith was talking about when he set up the system originally.
I don't think it's right to take a direction that is so totally opposed to the interests of the injured workers, who represent quite a large proportion of the population. If you look at the working population of Ontario and the potential for injury, and you're trying to take away from the future injured workers the right to compensation, this is not a just system and it is not a system that is going to succeed.
Ms Endicott: What we want to ask today is whether the committee will give more hearing time so that it can hear from these injured workers. Specifically our request is for one day, which has been the tradition with this committee, set aside at the end of the hearings after you've travelled around the province, whenever you want, in September. We are not particular about the time. We can have a big room and we can make the presentations and we can bring these people up. We can bring Max Bryant up and bring Mr Xinos up and bring all these others up so that they can tell you their story.
If you listen to them, you will begin to understand what the problems are in Bill 99. If you do not listen to these workers, you cannot possibly have an inkling of what sounds good on paper, what sounds good when the minister presents her introduction to it. You don't see the details until you hear these people's stories, so we come to you here today to ask for that special day.
Mr Biggin: The one thing you should be aware of is that we have a track record in performing this. If you need a reference, you can ask Marg Rappolt, who's very familiar with how we went about organizing a public meeting on the Royal Commission on Workers' Compensation. It was very well disciplined, people got a chance to speak, and everybody on the panel was treated with utmost respect. What we want for injured workers is the right to stand up and explain to you precisely how this is going to impact their lives and the lives of their children and grandchildren.
Mr Christopherson: On a point of order, Madam Chair: In light of what you've heard and in light of the fact that all of the people who are here today represent injured workers and their concerns, I would like to move that the committee, all the committee members, recommend to the House leaders that we reconsider the schedule and allow for such a public meeting. It's been done before; it's not precedent-setting. It allows people who can't even fit into this room to at least be a part of the proceedings. I implore members of the government to please set aside your party alliance and listen to the concerns of these injured workers and let that motion go through.
The Chair: As you probably know, you cannot make a motion on a point of order. That would have to be something done while you have the floor at another time.
Mr Christopherson: Then I ask for unanimous consent to be allowed to make such a motion.
The Chair: Do I have unanimous consent for that motion to go on the floor? I hear "no."
Mr Christopherson: Ted Arnott said no. Way to go, Ted.
The Chair: Not at this time. Mr Biggin, our time has expired and I would like to thank you for coming forward. I just would indicate that at any time while the committee is sitting we are very open to letters or any correspondence. You may address it to the Clerk and it will be copied to all members. Thank you very much, Mr Biggin.
ONTARIO FEDERATION OF LABOUR
The Chair: Mr Gord Wilson, would you come forward, please? Is Jim Pare joining you? Welcome, Mr Wilson. Your presentation time is 20 minutes. If you would introduce both of your colleagues for the Hansard record, please.
Mr Gord Wilson: As you have observed, I'm joined by Mr Jim Pare, who is the director of organization for the Ontario Federation of Labour and has specific responsibility for the Workers' Compensation Board and for the appeals tribunal. He has years of experience as an injured worker advocate. I also have with me Vern Edwards, our director of occupational health and safety at the federation, who enjoys the same level of expertise in his field of endeavour as does Mr Pare.
We are here today to speak on behalf of, first, injured workers, those in the future who also will be injured who have not yet been injured in Ontario's workplaces, and of course for the survivors, the families of those workers who unfortunately have been a statistic through a workplace fatality.
I usually thank government standing committees for the opportunity to appear before them because I have been given an opportunity to make input into important decisions by the government which will affect our 650,000 members and their families. However, given the mockery that this government has made of the hearing process for Bill 99, this would not, in my belief, be appropriate. In fact today we have heard on at least two occasions that the government has had deaf ears to the pleas of injured workers, many of whom have joined us in this room, who were simply asking to be heard. The government's reaction of course is not only unprecedented but I would characterize it as being unfair.
The federation has not prepared a formal brief to be left with the committee. This is the first time in my tenure as president of the federation that I can recall that we have done this. We believe the behaviour of the government has been nothing less than cavalier, bordering on insolent, regarding legislation which establishes now a criterion which makes it operational for employers to maim and to kill workers as opposed to preventing injuries in Ontario's workplaces.
This legislation, if passed, will make Ontario statistically the safest place on earth, while workers will be forced to suffer in silence, forced to work injured or be fired, accept exposure to hazardous substances, with their injuries and illnesses never being reported in the system.
I don't believe -- and I am sincere -- a submission by the Ontario Federation of Labour would even be read by the Minister of Labour or by the government members on this committee. Not one proposal that we have made on behalf of our 650,000 members and their families has been incorporated into the torrent of anti-worker legislation introduced by this government over the past two years.
Let me be clear: This government seeks no compromise nor does it seek any balance. It seeks to create a labour relations environment in which all of the rules are stacked in favour of the employers, a throwback to the turn of the century. In point of fact, these hearings are little more than a public relations stunt for the government. One hundred and thirty people will be allowed to speak, out of 1,300 who have asked to be heard here today. The government has attempted to keep these hearings secret and has refused to advertise their existence in the media, unlike past governments in similar circumstances of all political stripes.
The plantation overseer is now in absolute control; and talk about Newspeak. George Orwell would be ecstatic about the proposed new name for the Workers' Compensation Board: the Workplace Safety and Insurance Board. To use the word "safety" in legislation such as this is an insult to workers who put their lives on the line for their employers everyday. The more appropriate description for Bill 99 would be the future bill of worker dismemberment and fatality.
The legislation places more emphasis on programs like the board's current experience-rating programs, in which the reported accident frequency and the claims cost have a direct affect on the kickback employers receive from the board each year. Experience rating is designed to distort accident statistics through the suppression of claims. According to its last annual report, not ours, the Workers' Compensation Board paid out more in employer kickbacks, a total of $359 million, than it paid to injured workers with new claims, a lesser amount of $337 million.
Bill 99 eliminates the template of best practices in the current act and replaces them with mechanisms which make it more profitable to intimidate workers and to suppress claims than it is to prevent injuries. Bill 99 will enshrine the concept of employer avoidance and discourage compliance in the interests of reduced employer costs.
Bill 99 forces workers to ask their employer for a form in order to make a WCB claim. This will be the employer's first opportunity, if they wish, to intimidate a worker not to file a claim. In non-union workplaces, I submit, claims will often not be filed in these intimidating circumstances because the worker will feel under threat of discipline or perhaps even job termination. Under the current system of WCB claims, the claims process starts immediately after the claimant's doctor determines that an injury is work related.
I ask the government members here today, how will the 24% of people who can neither read nor write at a grade 9 level cope with the form that you are presenting? In how many languages will it be available? If the government's claim is that Bill 99 has been well thought out then tell us today, how many languages will these new forms be printed in? Surely you must have the answer. Anyone here knows the consequences of making an error on a government form.
My point is, this legislation has made it easier to intimidate an injured worker from filing a WCB claim than it would otherwise have been to prevent the injury in the first place. If no record of injury exists, the employer's experience-rating kickback will increase. Workers are injured and the employer is rewarded with a larger kickback from the board. It's a good deal for employers but it's a bad deal for injured workers.
For those workers who are successful in making a claim, the legislation introduces a new punitive wrinkle. The injured worker's physician will be forced to provide medical information about their patient's injury to the employer without the worker's consent. The current act protects the integrity of the return-to-work process by requiring the worker's consent before medical information about the injured worker is released to the employer.
Physicians have no objection to providing employers with useful functional-abilities information if the employer has a good return-to-work program in place. When physicians are forced by Bill 99 to provide this sensitive medical information to employers without proper accommodation expertise, they will do what they must to protect their patients. Family physicians tell us they will indicate "no functional abilities" on the board's form rather than send their patient back to some employer pretending to be a physician who has never put their mind to accommodation or to ergonomic issues.
Appropriate and useful accommodation programs are good prevention programs. They foster an ergonomic approach to prevention. Bill 99 assumes that every employer has an effective accommodation program and somehow anticipates that forcing physicians to provide private medical information to employers will improve a worker's return to work.
It gives the power to the board under section 37, as we've heard, to reduce or terminate workers' benefits -- pardon me, under another section -- if they don't return to work at their employer's call. Early return to work, injured or not, reduces employer costs, and we all know that this Bill 99 is about reducing employer costs, nothing else: $6 billion to $9 billion worth out of the pockets of injured workers in Ontario. Workers will be forced to return to work before they are ready. Bill 99 makes forcing workers back to work through punitive return-to-work programs cheaper and easier than preventing the injury in the first place.
The term "ergonomics" will be a forgotten concept. Workers will be placed in dangerous and frightening situations as the injured are forced back to work prematurely. The employer's experience rating kickbacks will be juicier and they will be fatter. Employer praise of Bill 99 will no doubt be welcomed by this government.
Bill 99 extinguishes the Occupational Disease Panel which conducts independent research on workplace diseases. This panel has saved the board millions of dollars in expenditures by identifying the relationship between disease and the workplace. By knowing the cause, we have been able to prevent future diseases from occurring. Terminating the ODP is consistent with other purposes within this bill. All you do is paper over the problem and suddenly it no longer exists. Workers will die from exposures and no one will be able to make the workplace link. The costs will be offloaded to our social programs and to our health care system. The government plan will be working and another chorus of employers will sing yet again the government's praises.
Collectively, the employers' experience rating kickbacks increase while workers and their families pay the real price of occupational disease: poverty, disability, suffering and death. The volume of employer praises would drown out the sounds of the tears of families who have lost a loved one.
Then there is the most important emerging health issue of our time, the issue of chronic workplace stress. As new technology is introduced into the workplace, workers believe it is important to evaluate its impact upon the people who work there. We are producing more than ever before, assisted by technology. Things are happening faster. Work may be less physical, but it has become far more stressful.
The authors of Bill 99 know all of this. They know that the workplace stressors are identifiable. They know that the medical documentation from every authoritative source on this planet documents and identifies workplace stressors. We know the causes which lead to psychological disability, and because we know the causes, we can prevent them, but this government's plan is to avoid, not to identify.
The Minister of Labour and her government have chosen to facilitate more stressful workplaces by eliminating compensation for chronic workplace stress. Employers have been given the green light to ignore the prevention of these disabilities. Bill 99 encourages employers to harass and to intimidate workers because they know it can be done with impunity.
Again, when these injuries no longer exist statistically, the employers' experience rating kickbacks increase yet again. Life is good for employers in Mike Harris's workplaces of Ontario, just like the good old days before civility. It won't, however, be good for workers and for their survivors. It will once again be a horrible and dangerous experience.
There is not enough time to touch on other significant punitive provisions in this legislation; others will. I believe our emphasis today had to be upon what soon will be literally life-and-death situations in workplaces across the province.
This legislation makes it less likely that our members can return home from work in the same condition in which they reported for work, healthy and safe. This legislation rewards employers handsomely for ignoring injury prevention. And make no mistake about it: Bill 99 contains no health and safety prevention provisions at all, outside of perhaps a passing reference in the purpose clause.
Ontario will become statistically the safest place on earth, while in the real world of the workplace, workers will be forced to work while injured, while being maimed, killed and exposed to hazardous substances in the interests of the government's quest for a profitable, business-friendly environment. Like Premier Harris has often said, Ontario is open for business. He forgot to mention that the graveyards of the province will be the busiest.
There are many other repugnant and dangerous aspects of this bill which reflect employers' demands, including reducing the inflation protection of unemployed workers with disabilities by 75%; forcing workers to undergo risky operations or take drugs which they prefer to avoid because it is cheaper than the treatment recommended by their physician; privatizing vocational rehabilitation so that making a profit from a worker's misfortune becomes a higher priority than the worker's wellbeing; cutting future disabled workers' pensions in half when the government knows full well that most injured workers do not have any access to an employer pension plan; cutting benefits from 90% to 85% of net pay for no apparent reason other than to demonstrate to employers that this is a get-tough-with-workers piece of legislation; setting arbitrary time limits on one of the most debilitating disabilities, chronic pain -- why limit yourself to getting tough when you can play God with a worker's physical condition; eliminating the independent appeals system and placing WCAT decision-making under the control of an employer representative appointed by this government; deeming workers to be able to obtain jobs which are not available and then setting their benefit levels in the pretence that a job is available.
Bill 99 is a direct attack on workers and their families: no more, no less.
I was in a taxi the other day and the driver said to me, "Usually it is the people who hate the government, but it seems with the Harris government, it is the government which seems to hate the people." The contents of Bill 99 stand as stark testimony to the truth of that cab driver's observation. Bill 99 has but two objectives: first, to cut workers' benefits, and correspondingly, secondly, to reduce employer costs and liability for those workers injured and killed in their workplaces.
This action by the provincial government surprisingly comes at a time when the board has achieved a $1-billion surplus over the past three years, has never borrowed a dime in its history, will eliminate its unfunded liability in approximately 15 years and has more than $8 billion in the bank.
Welcome to the new Ontario, a place where fairness and justice and equality no longer have any currency, a place where survival is based upon wealth and upon power, a place where we have now returned to the past and a place where past divisions will once again recur.
One final note, if I may. To me, it is tragic that this government has lost sight of one simple truth: Laws are enacted to protect workers precisely because in the absence of such laws employers will act in their own exclusive self-interest, and often to the detriment of workers. They have in the past and they will once again as Bill 99 empowers them, if the government succeeds in passing this vindictive and punitive legislation. I would say to the members of the government, the government must therefore accept the responsibility for each future act of employer self-interest which results in a worker's injury or in a worker's death.
My final comment to the government members: When this happens, I want to assure you that the injured workers and those of us who care about them in this province will be there to remind you of your responsibility in this situation.
The Chair: We have about three minutes remaining in the presentation time, so the questions and answers will have to be brief.
Mr Doug Galt (Northumberland): Thank you for your presentation. I'm just curious on a couple of statements I have here and your response to them. During committee hearings here in 1994, as quoted in Hansard, "This federation does not willingly endorse the Friedland formula or anything else that would reduce benefits," a quote that you made at that time. Recently, the member for Beaches-Woodbine stated on May 1 during debate of this particular bill: "I would also point out that the Friedland formula was arrived at through an extensive set of discussions and negotiations...between employer representatives and injured workers and union representatives. It wasn't easy for anyone around that table, but we worked it through and we came to a consensus. That was endorsed by the Ontario Federation of Labour."
Mr Wilson: I accept your observation that you apparently are opposed to consultation with all parties involved. I mean, do your homework, my friend. If you did, you would know that when we dealt with the PLMAC, which was equal numbers of employers and ourselves in this province, in consultation and with the participation of injured workers, we excluded from the Friedland formula those people who would be most adversely affected by the impact of it. Overwhelming. I think, if my memory is correct, 90% plus workers who would be impacted by the Friedland formula were workers who were receiving pensions and had returned to work. We made sure it did not impact upon any of those workers who were caught up in 147(4), I think it was, Jim, or those who were 100% disabilities and couldn't return to work or the survivors of those persons.
I want to also add that what was given to those people immediately was a $200 increase in their pension, recognizing how tough they were facing out there. If you did your damn homework, you wouldn't ask such a stupid question.
Mr Patten: Mr Wilson, thank you for your presentation. It's quite eloquent. My question, with only a minute: You identified a number of areas where the suppression of claims is. By that you mean that the test will be severely reduced and therefore there will be less, so the statistics will show up as the best, healthiest workplace in Ontario statistically because those people who don't qualify are on welfare or other disability programs. Is that your --
Mr Wilson: I'm sorry. I was having trouble listening to your question. I was having trouble hearing you.
Mr Patten: I thought your point was quite poignant in saying that if you reduce the criteria and make a more difficult test, which the legislation has done, you'll have people who don't qualify but are still injured and still needing support out there. So the statistics may be glorious, but the fact remains that you have more people who are in need of support programs.
Mr Wilson: I'll just check with Jim. We're not off the wall on this. Back in 1986-87, I think it was, we had a task force that roamed this province in which a number of people participated. What showed up, for example, in addition to what we talked about today, is employers who were saying to mostly single parent mothers: "You've been injured at work today. I'll give you a choice. You can either receive an S&A benefit which is substantially less than your workers' compensation benefit or you can file a WCB claim and we will appeal the claim at every stage so it will be literally months before you're given a cheque."
If you're a single parent with a couple of kids, I want to tell you, that's a pretty hard choice: principle or eat. To the courage of most of them, they said, "To hell with the employer," and they took them on. What I'm afraid of is you're going to run into the same situation here. I can tell you I participated in a meeting back in the 1980s when a major employer in this province said in front of a group of employers and ourselves, "I'm sorry, but we don't record half the injuries that occur in our workplace."
Mr Christopherson: We have sat in the House and watched this government unleash a flood of anti-worker legislation, both anti-union and anti-non-union worker: with Bill 7, where scabs are now legal again; they took away successor rights to OPSEU workers in the tee-up to privatizing all those jobs; they've now, in this bill, eliminated what they started to eliminate in Bill 7, which was the employee wage protection plan; Bill 49, which took away rights of workers under the workers' bill of rights; Bill 15, which took away a 50% say in how the WCB is operated; Bill 136, which has now launched a major attack on municipal workers, school board workers, hospital workers.
Yet every day, Gord, we watch the Minister of Labour in the Mike Harris government stand up and say that they're fair, they're balanced, they want to create a climate where everybody gets along and where business wants to invest. I want to ask you for the record, Gord, what is the current state of the relationship between the labour movement, workers and this government? What is coming down the pike in terms of the future? And what does that mean, really, for jobs in the future in Ontario?
Mr Wilson: It's hard to say what's coming down the pike because we don't get consulted. I can say in honesty, with the minister present, that the number of conversations I have had with this government and with this minister are substantially less than I have had with previous governments. I've talked with my predecessor, who tells me that almost on a weekly basis he spoke with either the Minister of Labour or the Premier, Premier Davis. I'm sure if Bill Davis were here, he would support that position.
It's difficult. We had to make a decision very early on, as I've tried to indicate in these remarks, that there's no point in us leaving a logical argument here with this government because they aren't likely to adopt any of the suggestions we make. I say to the government members on the committee, "Name one." We're met with silence. It's unfortunate, but it also is the reality. I think it is partly responsible for the emotional outbursts you have seen from people today, in that government is exclusive to them; there is no inclusiveness except in the tight circle of folks.
I finally want to say, Mr Christopherson, that I appreciate very much the comments you and members of the opposition have made in support of us and the injured workers here today. It's a tragic fact that they have fallen upon deaf ears.
The Chair: You have to wrap up.
Mr Wilson: I want to conclude with one comment. If you want to throw me out, Brenda, go ahead.
The Chair: No, I just want you to finish on time. We have another presentation.
Mr Wilson: That's good, because the Speaker didn't do it and I didn't think you'd do it either. I just want to say to the minister -- Minister, if you'd look at me, please; thank you -- you have heard a number of citizens in this province who are working people, who are hardworking people, who have run across an unfortunate incident in their workplaces. They have been hurt. What they have asked you for today is, simply, dialogue.
Like others before me, I'll make one more appeal. Minister, can you give them the assurance today that you will hold a meeting with the injured workers in this province at some place big enough to accommodate them and listen to their stories so that, as the group before me said, if you listen to their stories, you might understand what this legislation is going to do to their lives.
Minister, please -- to the members of the government on this committee I ask you please to try and persuade the minister and the cabinet -- listen to these working people who have been hurt in the workplaces. If nothing else, their citizenship ought to entitle them to an opportunity to be heard in Ontario about what their lives are going to be and what the future of their families is going to be.
EMPLOYERS' COUNCIL ON WORKERS' COMPENSATION
The Chair: I'd like to call upon Mr John Blogg to come forward, please, from the Employers' Council on Workers' Compensation.
Mr Christopherson: On a point of order, Madam Chair: I've been advised there are camera crews that have been trying to get in that aren't being allowed in. I think that goes way beyond any idea of trying to maintain order in this room. I'd ask you to find out if there are, and if there are, to let them in.
The Chair: If there are problems it's only because of the volume of people moving in and out of the doors and the noise. I think probably there will be an opportunity for that to occur once we have a little bit of space and the congestion is cleared at the door.
Mr Christopherson: The problem with that is that it leaves the impression the media are being deliberately kept out.
The Chair: No, that is not at all --
Mr Christopherson: I'm asking you to look into that to ensure that if they want in, they're getting in.
The Chair: I will look into it, but it's not the case to my knowledge.
Ms Lankin: They're out there right now. They have sent in notes saying that they have not been allowed in. What I would like to ask you to do is to give a direction to the staff to let them in the room now.
The Chair: Welcome, Mr Blogg. We're a bit behind. We apologize for that. If you would be so kind as to introduce your colleagues for Hansard and for the members of the committee. You can begin when you're ready.
Mr John Blogg: My name is John Blogg and I'm vice-chair of the Employers' Council on Workers' Compensation. I'm also the secretary and manager of industrial relations of the Ontario Mining Association. David Frame is executive vice-president of the Council of Ontario Construction Associations; Michael Warren is a consulting actuary with William M. Mercer; Mike Burke is with the Ontario Trucking Association; and Bob Gauttreau is senior safety consultant with Metropolitan Toronto.
I guess we cleared the room.
The ECWC is a non-partisan coalition of employer associations, employers and experts in the workers' compensation field. Our members represent all aspects of the economy and large and small employers. Since 1984 the ECWC has been active with the board, the tribunal and the government on all facets of the Ontario workers' compensation system, working with these agencies to attempt to ensure that an effective and sustainable workers' compensation program is delivered. A complete list of our members and mission statement is included in the materials that have been handed out.
Overall the council strongly supports Bill 99, providing some needed changes occur. We view Bill 99 as an intelligent refinement of the last three major reforms, initiated by past governments from all three political parties. The themes introduced over the last decade or more continue to be respected and improved upon. We are encouraged by the changes to the benefit delivery model which address many of the shortcomings of the present future economic loss process, and by the renewed emphasis on employer accountability and focus on worker accountability.
For the first time in memory a political party studied the issue extensively while in opposition, set out a comprehensive platform for reform, campaigned on that platform, and began to deliver immediately upon attaining office.
Bill 99 represents the culmination of a long, thoughtful process aimed to advance the interests of workers and employers alike. Many critics simply refuse to acknowledge the sorry state that the Ontario workers' compensation system has become, and offer little in the way of solutions. If one is able to get past the highly charged rhetoric, an honest assessment of Bill 99 shows it is not a radical change, but instead a fine-tuning of recent reforms initiated by all three political parties over the last decade and a half.
Bill 99 is not, as some claim, a free ride for employers. In fact, with the emphasis on accident prevention and rehabilitation, individual employers will see assessment rates rise dramatically, sometimes exponentially, if they don't get the message. Bill 99 increases the individual responsibility of every employer and sets out, in no uncertain terms, a far higher standard for corporate behaviour, with increased penalties for those who don't meet the standard.
For the first time, expectations for interaction and communication between the stakeholders are set out in the law. Employers and workers are expected to cooperate more, to work together and to ensure return to work. This is the essence of Bill 99, in our view, increased accountability with a focus on cooperation.
Before we begin our assessment of the Bill, it is fitting to take a moment and review the actual need for reform. It must be remembered that during the last election campaign, both the Liberals and Progressive Conservatives made WCB reform an issue, and for good reason: While accident rates were decreasing, employer assessment rates were up and the unfunded liability continued to grow. The NDP had just implemented an initial attempt at reform through Bill 165, followed by a royal commission, suggesting there was more yet to do.
Contemporary political action by all three parties has therefore recognized the undeniable case for reform. Between 1983 and 1994, the WCB's unfunded liability increased by a staggering 470% from $2 billion to $11.4 billion. It presently sits at $10.5 billion. Yet, from 1985 to 1994, while accident rates actually decreased 33%, from 186,000 to 125,000, employer assessment rates rose by 46%.
To those who think more money is the answer, this has been tried and it failed. As an example, starting in the 1980s, business accepted what then was thought to be a workable, but painful plan, to increase employer assessment rates by 15% each year for three years, followed by 10% increases each year for another three years -- that was all over and beyond additional inflationary adjustments -- with the understanding that the unfunded liability would be eliminated by the year 2014. And it seemed to be working. As early as 1987 the WCB reported the plan was on schedule; two years later the board actually projected the unfunded liability would be eliminated seven years ahead of plan, and all business had to do was to keep accident rates at their 1989 levels.
Business did better than that. Since 1988 the number of lost time accidents in fact have decreased by over 43%, and the average duration of lost time claims decreased significantly from 110.8 days in 1991 to 68 days in 1995.
Yet now even the best projections suggest that without further reforms the unfunded liability will top $14 billion by 2014, when it was supposed to be zero. Remember, money that goes to the unfunded liability is money that can't go to help workers hurt today.
While all this was going on, benefit expenditures more than doubled from $1 billion to $2.3 billion and the number of WCB staff increased 24% from 1984 to 1994, from 3,700 to 4,600. The overall cost of administering fewer claims increased 79% from $185 million to $331 million. Today, Ontario alone now accounts for 77% of the total unfunded liability of all Canadian jurisdictions, but only 29% of the total lost time claims, and is second only to Newfoundland in having the highest average employer assessment rates.
WCB taxes are job killers, pure and simple. The promised WCB reforms will create jobs for Ontario, and that's according to a DRI/McGraw-Hill study sponsored by the ECWC and released last spring. The study suggests a reduction in the average rate of assessment to $2.32 per $100 of payroll would generate 33,000 jobs. This $2.32 is still higher than the $2.25 mean rate of the 11 other compensation systems in Canada. We should point out that the board lowered Ontario's average assessment only to $2.85, and while some companies will see rate declines, much of Ontario business will see rates rise.
In fact, in 1997, 74 industries or 34% of industry rate groups saw assessment rate increases. For example, labour supply firms saw rates go up 86%, nursing homes 40%, home builders 22% and steel foundries 10%, to name but a few. Many will continue to see rate hikes in the future. Based on 1997 figures, for example, ambulance services will see a 34% future increase and nursing homes an additional 28%.
It is a myth that assessment rates for all businesses are being reduced. What is being implemented, however, is a fairer distribution of assessment, based on company and industry performance. Very simply, to the employers the government is saying, "If you cost more to the system, you're going to pay more."
The initial plan was to reduce the average target rate of assessment by 5% to $2.85 by this government. Although clearly this was a welcome first step, a reduced rate to $2.85 is still the second highest in Canada, and when compared to provinces such as BC, Manitoba, Alberta and New Brunswick, it becomes readily apparent how far Ontario still has yet to go.
In considering reform, the issue is not to lower costs to lower assessments, but to ensure that the system fairly and equitably compensates workers and taxes employers. The taxation levels for employers and the wage replacement levels for workers must be equitable.
To further illustrate the need for reform, let us look at but one example, the present wage loss benefit model. In 1990, the Liberal government's Bill 162 introduced a new and welcomed method for compensating long-term disability. The old meat chart system was rightfully abandoned for a more individualized approach focusing on a worker's actual wage loss. However, while the original intent of the FEL system was commendable, significant new problems quickly emerged. Systemic and unintended but unfair overcompensation for workers who returned to their pre-injury wage levels materialized. The following examples represent actual cases.
In case 1, the worker was granted a FEL award on June 13, 1994, in the amount of $1,267.66 but returned to regular work with no wage loss three months later. Under the current law, the worker continued to receive full salary plus $1,267.66 a month for another 21 months, a perfectly legal windfall of $26,620.86, tax-free. The worker had net earnings of $2,902 before his accident and net earnings of $4,169 post-accident.
In case 2, the worker was granted a FEL award on July 1, 1993, and returned to regular employment at no wage loss on January 3, 1994. The worker received $959 per month for at least 18 months for a total overcompensation of $17,262.
In both instances, the law was applied properly. Bill 99 addresses this inequity by simply requiring that the benefits adjust when the worker's circumstances materially change. This is simple fairness. Certainly no one supports workers getting more on compensation than when they are working.
Many have argued that the unfunded liability is no longer a problem and is, if we understand the argument, simply a smokescreen for unneeded reforms. Yet about 30% of all of the assessment collected from Ontario employers goes towards the unfunded. Again, while Ontario accounts for only 29% of Canadian lost time injuries, it owns 77% of the total national unfunded liability.
Those suggesting that recent declines mean the problem is resolved are being, we must suggest, shortsighted. Our analysis suggests that there are really three reasons for the decline in the unfunded liability: (1) as a result of better than expected investment income; (2) as a result of lower than expected inflation; (3) as a result of fewer accidents.
The reduction in the unfunded liability is entirely the result of the net effect of annual fluctuations experienced, gains and losses, and relates to experience parameters affecting existing claims, or the number of new claims in the current year compared to expected. Future assessment rates will be set to match expected future accident rates.
In relation to the expected level of the unfunded liability, it must be appreciated that with an unfunded liability of between $10 billion and $11 billion, it is not uncommon to have fluctuations of a few hundred million dollars annually in relation to expected levels. It is not the result of any systemic change. The unfunded liability continues to represent a burden on future employers who have to pay an extra 88 cents in their rate over and beyond the cost of current claims.
Looking at the history of the unfunded liability in Ontario and the efforts to get this under control shows that over 14 years ago, when the WCB said it was getting serious about the unfunded, 50 cents of every assessment dollar was allocated to the unfunded. Today, after a decade or more of assessment rate hikes, after a dramatic reduction in accident rates and time loss on claim, it's up to 88 cents. This represents, based on the average rate of the board, almost $500 per worker and is money diverted from looking after workers who are hurt today. Therefore the problem, in our view, has hardly been solved.
When looking at Canadian jurisdictions, it becomes clear the Ontario reforms are not at all out of place.
New Brunswick decreased its average rate of assessment in 1995 by 18% to a rate of $1.70, but was still able to reduce its unfunded liability, which soon will be eliminated. During this time, New Brunswick decreased the benefit rate from 90% to 80% net earnings rate, with 85% for workers who were off over 39 weeks, and they added a three-day waiting period.
In Manitoba, through Bill 59, which was effective January 1, 1992, they excluded stress claims and diseases of ordinary life and limited claims past 24 months to 80% net earnings from the previous 90%. Manitoba has managed to nearly eliminate their unfunded liability while keeping a rate at $2.15 per $100.
Alberta eliminated its unfunded liability, which was $277 million in 1993, to a better than balanced position of $271 million in assets over liabilities in 1995. It still maintains one of the lowest average assessment rates in Canada. In 1995 the rate was $1.97, and in the previous year, 80% of Alberta's employers saw their rates drop. Interestingly, the Alberta WCB's commitment to run more like a business has made the difference, with more efficient administration and better accrued investments.
Bill 99 does not radically alter the workers' compensation landscape. In fact, the basic tenets survive and are strengthened. What it does is bring forward new expectations of cooperation and communication between employers and workers, along with a renewed sense of accountability.
While we support the general themes of the bill, it is not perfect and some changes are required. We are disturbed that the three-day waiting period was not introduced and that appropriate changes were not made to the definition of "accident." Both of these were longstanding Progressive Conservative Party of Ontario commitments and we encourage the government to honour these important promises.
Our continued support for this bill is dependent upon some needed redrafting, the most significant of which is highlighted in our report. I will very briefly summarize a few.
Section 40, dealing with the duty to cooperate: While the ECWC supports the emphasis on cooperation, much of section 40, in our view, is redundant. The council rejects the emphasis on fines, which runs counter to Progressive Conservative Party pre-election commitments.
Section 42, dealing with labour market re-entry plans: The labour market re-entry process will work for large employers. However, we are concerned that time on claim may actually increase for medium and smaller employers unless the need for board resources is identified early.
Section 43, dealing with the wage loss benefits: While we support the intelligent refinement of the benefit model that addresses many of the shortcomings of the present FEL process, new pitfalls are introduced. Simply, too much discretion is left in the hands of the board. Other technical problems present themselves, and we encourage the members of this committee to review our full comments.
Sections 46 and 47, which deal with non-economic loss awards: The ECWC appreciates the simplification of the NEL process, but we recommend extending the prescribed time for a reassessment from 12 months to 36 months.
Section 80, subsections (4), (5) and (6), provides a very broad discretion to the board in setting company-specific assessment rates. But, disturbingly, individual disputes are not allowed to proceed to the tribunal. We believe this is unjust and needs to be changed.
Section 95, the special reserve section: We believe that the second injury and enhancement fund must be codified in law.
Finally, section 118 dealing with the tribunal's jurisdiction: While reform of the appeals process is called for, we strongly disagree with the Bill 99 changes and offer a more appropriate model. We disagree with the manner in which the tribunal's powers have been curtailed. We have developed 10 core principles which would ensure that the tribunal plays an important role in auditing board policy while still ensuring that the board of directors retains control over policy development and its application.
With these changes, the Employers' Council on Workers' Compensation provides its strong and full support to Bill 99 along with its commitment to ensure the successful implementation of this momentous and pivotal piece of legislation. Without these changes, Bill 99 may actually impair the government's ability to attain its workers' compensation reform objectives.
The Chair: We have just about a minute and a half remaining in presentation time, I think barely enough time to entertain questions from each of the caucuses. So with your indulgence we will diligently promise to read the report that you submitted to us, and we thank you very much for your time this afternoon.
This committee stands adjourned until Wednesday at 3:30.
The committee adjourned at 1811.