CONTENTS
Wednesday 28 September 1994
Workers' Compensation and Occupational Health and Safety Amendment Act, 1994, Bill 165, Mr Mackenzie / Loi de 1994 modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail, projet de loi 165, M. Mackenzie
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Vacant
*Vice-Chair / Vice-Président: Cooper, Mike (Kitchener-Wilmot ND)
Conway, Sean G. (Renfrew North/-Nord L)
*Fawcett, Joan M. (Northumberland L)
*Ferguson, Will, (Kitchener NDP)
Huget, Bob (Sarnia ND)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay ND)
*Wood, Len (Cochrane North/-Nord ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Arnott, Ted (Wellington PC) for Mr Jordan
Duignan, Noel (Halton North/-Nord ND) for Mr Huget
Hope, Randy R. (Chatham-Kent ND) for Mr Waters
Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway
Rizzo, Tony (Oakwood ND) for Mr Klopp
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Turnbull
Also taking part / Autres participants et participantes:
Ministry of Labour:
Murdock, Sharon, parliamentary assistant to the minister
Cohen, Sherry, solicitor, legal services branch
Toker, Mitchell, manager, workers' compensation board
Clerk / Greffière: Manikel, Tannis
Clerk pro tem / Greffier par intérim: Freedman, Lisa
Staff / Personnel: Spakowski, Mark, legislative counsel
The committee met at 1021 in committee room 1.
WORKERS' COMPENSATION AND OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT LA LOI SUR LES ACCIDENTS DU TRAVAIL ET LA LOI SUR LA SANTÉ ET LA SÉCURITÉ AU TRAVAIL
Consideration of Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act / Projet de loi 165, Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail.
The Vice-Chair (Mr Mike Cooper): We are continuing on our clause-by-clause on Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act. We're on a Liberal motion now.
Mr Steven W. Mahoney (Mississauga West): Mr Chairman, could you indulge me and tell me what happened with MS-2, the government motion?
Ms Sharon Murdock (Sudbury): We didn't do it.
The Vice-Chair: We're doing yours first.
Mr Mahoney: You're doing mine first.
The Vice-Chair: And then we'll go to the government motion.
Mr Mahoney: I see. So you want to kill mine and then you'll go to the one you're intending on passing.
The Vice-Chair: Well, with your oratorical skills, I'm sure you can convince members otherwise.
Mr Mahoney: Do you think I can convince some of you? I actually can be fairly succinct, believe it or not, on this one. I've analysed the differences between --
The Vice-Chair: Could you please move the motion first?
Mr Mahoney: Yes. I move that section 0.1 of the Workers' Compensation Act, as set out in section 1 of the bill, be amended by adding the following subsection:
"Financial responsibility
"(2) The board shall conduct itself in a financially responsible and accountable manner in fulfilling the purposes of this act."
If you will note the fact that we don't have the government motion on the floor, I want to make one comparison, as there apparently is only one difference. My motion reads at the tail end, "in fulfilling the purposes of this act." The government motion reads "in governing the board." Other than that, they're virtually the same.
The concern that I have, and has been expressed to me by a number of people particularly in the business community, is that there's a little bit of a trick afoot here, I'd say to the parliamentary assistant, in that using the term "governing the board" does not take into account WCAT, for one example, and possibly other agencies that will drive the costs of the board.
We've all heard many examples of WCAT making a decision on an appeal that doesn't relate to the policies the Workers' Compensation Board itself has passed, and in fact it's been accused of being a policy-setting agency. So the concern here is that if you strictly limit this to the board itself as opposed to the purposes of the entire act, then you're exempting WCAT from having to act in a responsible manner. I would hope that's not the intent of the government motion and would hope that the government could adhere to the request of many people who came before this committee who referred to the purpose clause as being the actual instrument that would set out the purposes of the act.
We believe that the purposes of the act are numerous and we actually agree in our caucus with the purpose being primarily to deal with benefits, return to work, health and safety -- all of those issues around resolving the plight of the injured worker and getting them back to work. We support that as a fundamental principle. We just think also that it's extremely important that the purpose of the act include financial responsibility and accountability, and apparently the government does too, but I don't think you're going far enough and you're leaving this open to abuse, particularly by WCAT but perhaps by others.
If the government is prepared to amend its motion to replace the words "in governing the board" with the words "in fulfilling the purposes of this act," I would be happy to withdraw my motion and support the government motion in its place. I would ask the parliamentary assistant if she could respond to that request.
Ms Murdock: I wasn't even looking at that part in going to address your motion. Your motion actually has another difference that I think is even more problematic for us, because by saying "the board," and if you look at ours it says "board of directors," yours becomes a systemic motion instead of an obligation and duty of the board of directors, number one. That was one of our main reasons for not supporting yours.
Secondly, yesterday Mr Offer stated, I thought, quite eloquently the concerns about WCAT and its relationship with the board of directors, but I would point out to you that the PLMAC never discussed WCAT. I would also say that the whole reason that WCAT was instituted in the first place as an outside mechanism of adjudication is it's quasi-judicial; it's similar to a court system; you would want an outside body making the decisions. There's nothing in the act that precludes the WCAT from making decisions beyond the scope and policy that the board of directors has given. That's why you have an outside adjudication system.
I would say that it was never the intent of this government in preparing Bill 165 to have Bill 165 address the WCAT issue, and that that whole thing will be looked at by the royal commission.
Mr Mahoney: First of all, WCAT may be in its intent quasi-judicial, but in reality it's not. The people who infiltrate into the process, including MPPs, would not do such a thing if it were indeed quasi-judicial. You would not go on behalf of a constituent to court to fight a parking ticket as an MPP, but clearly MPPs intervene and act on behalf of constituents in the appeal process into WCAT and other levels. So I just totally reject the fact that it is quasi-judicial in its activity, in its actions, and in the way that it performs.
I also believe very strongly, and your response would lead me to no other conclusion than to believe, that you are intentionally excluding them by simply referring to "the board" as opposed to "the purposes of this act."
The comment that my motion is in some way systemic, I'm afraid I just don't understand what you're referring to. We are simply asking that the board, when acting in relationship to this act and the purposes for which this act is being put in place, conduct itself in a financially responsible and accountable manner.
When I first looked at this I wondered, am I being a little too picky, am I splitting hairs on this thing, because you do say in your motion, "to require the board of directors of the Workers' Compensation Board to act in a financially responsible...manner in governing the board." I really did think carefully about whether or not I was splitting hairs, but you specifically zero in on the board of directors only as opposed to the workers' compensation system. And if you want to talk about systemic, we're talking about the entire system and everything that impacts upon an injured worker, upon an appeal, upon an adjudication, upon every aspect of the workers' compensation system.
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If you really do want to reform the system and not just play games with regard to financial responsibility and accountability, I would strongly suggest that you have to go further and say that the entire workers' compensation system must be dealt with in regard to the purposes of this act in a responsible and accountable manner.
Interjections.
There's so much going on, I doubt that anyone in the government side, not on the committee but in the -- the parliamentary assistant is getting some kind of advice.
Ms Murdock: I can't get the advice and listen to you at the same time?
Mr Mahoney: Well, I guess you do have two ears so I guess you can do that.
I think you've come some distance and I appreciate that, but I just don't think that you've gone to the point where you're going to effect the kind of change that we need.
In the letter that got some attention by myself and others, dated April 21, from Premier Bob Rae to Jim Yarrow, he says, and I quote, "A `purpose clause' will be added to the Workers' Compensation Act which will ensure that the WCB provides its services" -- that's the key -- "in a context of financial responsibility." These are Premier Bob Rae's words.
The amendment deals with the services, not just a group of men and women sitting around a board table deciding on whether or not they're going to act in a financially responsible way. They can do it. If the board acts according to your amendment, in a financially responsible way, and WCAT decides to disagree with the board -- we've seen countless examples where the WCAT ruling will stand and the only appeal then would be for the employer, perhaps, to go to the courts. We really think very strongly that this has to relate to all services within the purposes of this act that are being provided by the Workers' Compensation Board.
I once again ask the parliamentary assistant to consider, at the very least, putting in the words "in fulfilling the purposes of this act," which would then cover all services referred to on April 21, 1994, by Premier Bob Rae in his letter.
Ms Murdock: I guess the first answer is no, I won't consider that.
Mr Mahoney: Then don't bother with the second answer.
Ms Murdock: The second answer is, I don't know why you would think that that would cover WCAT and I would like to have you explain to me how the way you've got yours worded would have anything to do with the operation and the decision-making provisions that WCAT has, when it was intentionally put out there as a separate, objective mechanism of appeal.
Mr Mahoney: If I was asked a question, I would tell you that what our motion does is deals with the purposes of the act. That's what we're here doing today. We're dealing with a particular bill and we're dealing with the purpose clause of the bill, which states how everything that's involved around that bill will be interpreted, administered and carried out. By referring directly to the purposes of the act, you're acknowledging -- when you go further on into the act -- maybe I should do that and this would help the parliamentary assistant.
When you go further on into the act, which is what I'm here to do, there are a number of areas where it would be consistent; for example, clause 15(3.1)(a) where it reads, "so that generally accepted advances in health sciences and related disciplines are reflected in benefits, services, programs and policies in a way that is consistent with the purposes of this act." And it goes on in (3.2) to say, "The board shall evaluate the consequences of any proposed change in benefits, services, programs and policies to ensure that the purposes of this act are achieved."
There's some consistency within the body of the bill. It continually refers to the purposes of this act. So in putting an amendment to deal with the financial responsibility, why would you not refer to the purposes of the act?
In the section that deals generally -- I'm looking for it -- subsection 58(1), where it says, "The board of directors shall act in a financially responsible and accountable manner in exercising its powers and performing its duties," if you said there, "the following as outlined in the purpose clause," then that section, which deals with financial accountability, would be consistent, as one of the purposes of the act, with the others. So you would accept the fact that the purposes are to provide fair compensation, to provide health care benefits, to provide rehab services, to provide rehab programs for survivors and to act in a financially responsible and accountable manner in relationship to all of those purposes of this act.
There's no consistency here, to the parliamentary assistant. Subsection 58(1) leaves it out. Certainly the sections that deal with voc rehab, the sections that I referred to that deal with health sciences and related disciplines, the section that deals with changes in benefits, services and programs: All of those sections refer to the purposes of the act, and yet you put in place an amendment attempting to look like you're agreeing with the business concerns in relationship to financial responsibility and accountability, and you leave out the purposes of the act.
Quite clearly our amendment includes that, makes it consistent with the rest of your bill, particularly the areas in relationship to health care benefits and changes in health sciences and those items that are referred to directly in this bill. Our amendment is very, very consistent with that.
Perhaps the parliamentary assistant would consider or should consider some kind of compromise in this where we could use the first part of your bill, which requires the board to act in relationship to the purposes of the act at least, but my preference would be that we deal with "conduct in a financially and responsible and accountable manner," and refer specifically and directly to the purposes of the act, which then ties in to benefits and other issues.
I might add just one brief comment. This could backfire on the business community and I'm not sure they thought that out in putting it here, but the old "what's good for the goose is good for the gander" routine applies here. It could backfire in that the board may decide that they indeed want to increase benefits, either in percentage terms or in issues that would be compensable, be it stress or be it whatever else, and then they could decide that the only way to increase that and be financially responsible and accountable is to increase rates. That clearly is a danger that I'm not sure the business community has thought out entirely, but frankly if that's the ultimate decision of the board, and they're empowered properly and they're acting within the confines of the purposes of this bill and the purposes of the act, then so be it. The business community can have a press conference and express its frustration and concern, because what this doesn't do that many people asked for from the business community is include a clause referring to the competitiveness of Ontario businesses.
Neither my amendment nor the government amendment goes to that extreme. We could have done that. We could have said, "act in a financially responsible and accountable manner, taking into account competitiveness of Ontario businesses," which would have directly referred to rates, but we didn't do that, because frankly, we've got to get this board into a position where they're able and capable of making a decision based on the purposes of the act around fairness to injured workers and around financial responsibility and accountability. If at the end of the day that leads to a decision that would increase rates, then the business community has got to accept the fact or understand the fact that they're acting in a financially responsible way.
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If you think of an example of Ontario Hydro, if Ontario Hydro provides service on a cost-pass-through basis and it provides services to a particular area, it must pass those costs through in terms of rates. The same thing could be true, and should be true at the end of the day, as long as they're dealing with fair, compensable injuries and issues and not going way outside of their mandate, way outside of the purposes of the Workers' Compensation Act and way outside of amendments such as Bills 81, 162 or 165.
I just simply plead with the government to make this bill consistent, to make the direction to the board -- which is ultimately what our responsibility is. We can pretend we are arm's length, but we pass the legislation around here and we're the ones who ultimately, through the words in the legislation, will direct the board how it should be acting. We're saying, "Be responsible and be accountable when you are interpreting the purposes of this bill." You're not saying that at all and you're leaving other agencies out to make their own decisions.
Ms Murdock: We'll get into the interpretation of our section, but I disagree with you. Financial accountability and responsibility should be on the board of directors, and yours doesn't say that. I think our difference --
Mr Mahoney: I beg to differ with that last comment. I'm sorry to interrupt you, but you say mine doesn't say that. Mine specifically refers to, "The board shall conduct itself." How can you say that that's not on the board?
Ms Murdock: "The board" is not the same as the board of directors, at least not the way it's used throughout the act, if you're talking in terms of consistency. The board of directors is the one that has the duty. "The board" is the system of the whole place, the corporation.
Mr Mahoney: Well, if that is your argument, the interpretation could be that the wording should be, "The board of directors shall conduct itself in a financially responsible and accountable manner in fulfilling the purposes of this act." If that's an acceptable amendment to the motion and your interpretation, I'm more than happy to do that, but the concern is around the purposes of this act and the fact that we want to talk about the entire picture. The reason it's "the board" is because it's the WCB and all of the services that are inherent within that board.
Ms Murdock: I explained yesterday -- but I'll do it again -- that the question of having things filter down to the different levels throughout the entire system comes to the question in terms of this financial responsibility and accountability of whether or not a claims adjudicator, for instance, should have some awareness of whatever the board of directors has sent as a directive or a policy guideline or whatever, in terms of should have some idea maybe of where they are financially, but it should not be a determinant by the claims adjudicator on whatever case comes before them.
I don't think that's their function. That's not their purpose. They are there to adjudicate a claim and determine whether or not the accident did occur, whether or not the injury does exist and whether or not it's work-related; and that's their job. But it is not their job, in my view, nor at the different levels throughout, to determine: Can the board afford to pay for this injury? That is not. That's why I'm saying, no, I don't think that that should be one of the criteria used by the people within the system, but that the board of directors has a responsibility to be financially accountable and responsible and that it sets policy and guidelines that would direct those people within the system to act in a manner that it determines to be financially responsible and accountable.
Mr Mahoney: I clearly understand that we would not want or expect an adjudicator or a WCB doctor or someone working within the system to say: "I can't approve this claim because it's not financially responsible. I can't allow this treatment to take place because it's not financially responsible."
What we're talking about here is leadership. The leadership ultimately has to come from the board of directors in setting the policy. It would seem to me that if you look at the process, an injured worker comes in and meets with the adjudicator and goes through the process. The adjudicator approves the claim and it starts filtering through or at some point they turn it down and it goes through the appeals process.
The really serious concern -- and we've heard this expressed by injured workers as well, because decisions go both ways on this stuff -- is that there is no direct tie-in between an agency such as WCAT and the board in the sense that WCAT seems to have the ability to make its own decisions irrespective of board policy. We think that if you were to include the board as the broader board, that would cover WCAT and a subsequent decision by a court would uphold under the legislation the fact that they are part of the greater board and they've made a decision that is not financially responsible or accountable and overturn that decision.
How that is going to work through the process I admit will take some time, will take some test cases, but clearly that will put in place legislation directed by the legislators that will give direction for the courts to interpret it in that broader way. Under this, the court would look at this and say: "Well, the amendment says to require the board of directors to be responsible. This isn't the board of directors. The board of directors made their decision. They turned it down. They were responsible within the confines of making their decision. They said no."
Another agency that is not under the constraints of this act, because they're not mentioned, has overturned the board's decision without even taking into account financial responsibility. I can't believe that any government wants to restrict their, let's call it, A team and allow the B team to override the A team. It just makes no sense whatsoever.
You and I can play games and fight over words, but somehow I'd like to see an amendment here. If it's not mine and not yours, maybe it should be a new one that would ensure that the board of directors, and all related agencies governed by this act, act in a financially responsible and accountable manner in relationship to the purposes of the act. If we were to say that, then WCAT could and must adhere to the same policies of the board. That would not mean, with respect, that WCAT could not disagree with the board. WCAT could indeed overturn a decision that was turned down but would have to look at the financial impact, be responsible and accountable under the act if we indeed expanded it to include all agencies.
I hear what you're saying in relationship to the staff. I quite agree that I would not expect an adjudicator or a front-line worker in the system to make a decision based on whether or not the money was in the system. I highly doubt that they would even have the slightest idea whether or not it was. They've got to make their decision based on the information in front of them, which is the injury, the file, the accident occurrence etc. But once it gets past that stage, there are professionals who are involved in this in the appeal process who are being let off the hook.
I again reiterate: You're hamstringing the A team to some kind of financial responsibility and leaving the B team off the hook. I think it's a serious, serious mistake.
Ms Murdock: Two things: I'm going to go back to the PLMAC agreement when the employers had their press conference and made the presentation of what was in the agreement. The last page of theirs was a chart of how they thought the board should be set up. In that chart, WCAT was specifically -- it was one of the groups that deals with issues relating to workers' compensation on the bottom of the page -- left out of the loop of reporting to the CEO in their own chart. That's number one.
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Number two is, Bill 165 does not address any of those agencies and specifically WCAT. It was never our intent to have it do that. In my view, it shouldn't. The fact that WCAT is its own separate legal entity was meant in 1985 to give it the right to make decisions that went beyond, if necessary in specific cases, the policy of the board if it had to.
The whole point of having a separate adjudication system was so that when you went through the three different levels within the board and you still didn't like the decision you had another appeal mechanism and that they, not being under the board, would be able to make an objective decision, and they have done that. So the royal commission will look at that, not Bill 165.
Mr Mahoney: Would the parliamentary assistant answer me one question? Do you consider WCAT as part of WCB services?
Ms Murdock: Personally? No.
Mr Mahoney: Is there another way you would answer that other than personally?
Ms Murdock: Having worked as an advocate prior to being elected, I would say that we relied on the fact that WCAT was outside the workers' compensation system. That's why it was instituted and that's what you used it for. It was not part of the services provided by the board. Yes, their budget is approved by the board of directors, but once they have that budget they can use it in whatever way they see fit and they are an independent appeals tribunal. That was what they were put in place for, because it was felt at that time, and we weren't the government of the day, that it was almost incestuous within the board in terms of the decision-making at the three different levels and that an independent body was required. So WCAT was instituted.
If you wanted now to have requirements that the board of directors control the policy and the direction of the WCAT, then you have removed that independence, and I'm not prepared to do that, nor does Bill 165 purport to do that, and never was our intent to proceed along those lines.
Mr Mahoney: The parliamentary assistant is a lawyer, I understand.
Ms Murdock: Well, I never practised. But, yes, I did get called to the bar.
Mr Mahoney: You have training in the law.
Ms Murdock: Yes.
Mr Mahoney: I don't. But I just want to understand; maybe you can help me. In an independent decision-making role of some law, be it Workers' Compensation Board policy interpreted by what you refer to as a quasi-judicial body, compare that to the court system. If a judge sitting at the bench is to hear a case and the prosecuting attorney will make an argument against the individual charged, whatever the crime is, it could be a parking ticket or it could be O.J. Simpson, whatever it happens to be, is the court at all empowered, the judge, to make new law virtually by the seat of his pants in interpreting the laws of the land?
Ms Murdock: Yes. Obviously they look at precedent, but in law school days you looked at different cases. They moved from a point beyond because some judge in his or her -- well, his, in those days -- determination would say that the law was too restrictive and move it a little. So it has moved. The law's not static. So I would say that, yes, judges can do that. But I'm glad you raised that as an example because a judge also makes the decision, whatever the award or the judgement is, with nothing in mind as to whether or not the defendant can afford to pay for it. He makes the decision in a civil suit, for instance, and gives the decision and makes the award, and he doesn't care whether or not they can pay for it.
Mr Mahoney: You know what? I don't have law training, but I rest my case almost. That's the problem. You just hit it right on the head. WCAT, with your amendment, will be empowered to make a decision without caring about or taking into account the impact on anybody. They will be empowered to totally ignore board policy and direction and write a whole new policy right by the seat of their pants. I don't think there's any judge that I've seen in our country and our province who's going to totally ignore the law and create a new one. They may say, "This law is restrictive in this case because of extenuating circumstances," or something of that nature and give it some flexibility. That's not what we're concerned about.
What we cannot have is a board of directors administering this act, and several amendments to that act such as Bill 165 and others, and running this system -- we're really putting them in a terrible position, because the board of directors are the ones who are going to have to pass on the costs that could be directly attributed to a WCAT decision, with no accountability, no culpability on the part of the WCAT decision-makers. Why would you do that to the board of directors of this system? Do we really want to reform the system or are we just playing games here?
Ms Murdock: I know what you're saying and you know what I'm saying, but the bottom line here is that WCAT, at least not in my experience, and it's really a very young agency, has never really gone off the wall in terms of making its decisions. It's always done it, I thought, fairly reasonably. Yes, it's gone beyond the scope of some of the policies of the board, and I use chronic pain as an example, which the board under section 93 reviewed and so on, but the point is it made a decision that the board of directors had not set policy for. That's part of the role of WCAT.
I know the great fear, and we discussed this yesterday, is that WCAT is going to make some monumental decision on stress. The employer groups are just shaking in their boots, because if stress is recognized, does that mean that if you can't cope with your workload, you suddenly get off and you get workers' compensation? I know that's the fear of the employer community. But Bill 165 does not address WCAT. It never was our intent to address WCAT, nor do I think the board of directors should have any right to control WCAT decisions and where it goes on policy.
Mr Mahoney: Could I perhaps take another tack on this? This relates directly to this amendment, because it relates to financial accountability and responsibility. Subsection 15(3.2), at the top of page 5 of this bill, says, under "Evaluation of proposed changes," "The board shall evaluate the consequences of any proposed changes in benefits, services, programs and policies to ensure that the purposes of this act are achieved." Does that give the board, in your opinion, the ability to declare stress compensable?
Ms Murdock: The board can do that if it wishes.
Mr Mahoney: You brought up the stress issue at WCAT. If the board is required to act in a financially responsible and accountable manner and it interprets subsection (3.2) of this bill, then it's hard to imagine that they could include stress without at the very least doing a financial impact study and coming up with a decision on whether or not it was affordable and whether or not they had to perhaps increase rates or change other services or find money within the system. If you add financial responsibility into the purpose clause, then it should -- in theory, particularly if you accept our wording of the purposes of the act as opposed to just governing the board, but I'm willing to accept that may be a moot point -- cover that particular point.
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There will be a requirement on the board to do some financial studying. There is no requirement on any other agency -- and we're zeroing in on the obvious one of WCAT -- that might decide to empower itself in a hearing and include stress without even giving the board an opportunity to analyse the financial impact.
Should there not be some requirement to let, as I call them, the A-team, the board of directors, have an opportunity to live up to their responsibilities in determining the financial responsibility and accountability? I'm not asking you to even directly mention WCAT in this bill; I'm suggesting we should be looking at some wording that will give at least the courts an opportunity, in a subsequent court decision, to determine that the bill meant more than just the men and women who sit around the boardroom table; it meant the system. We could probably argue for days whether or not WCAT was part of the system, but your own Premier refers to the WCB providing "its services in a context of financial responsibility." How we can determine that an appeal process within the WCB is not part of its total service package is clearly beyond any kind of logic. It is part of the total service package. The courts are not.
I would refer you to the document that I love to refer to in Back to the Future and our recommendation that WCAT be set up with its own legislation, totally separate, as a quasi-judicial body, which would be aka a court. If it were indeed set up entirely with its own legislation and governing itself as opposed to part of the services of the WCB, then I might accept your argument, but it's not. It's set up as part of the appeal process.
You're just arbitrarily drawing a line and saying, "I'm going to move WCAT out of the overall services that the WCB provides." That is arbitrary and without any kind of justification or basis in law that I can see that you could make such an arbitrary -- not you personally, the government -- decision. It is part of the service package. Ask an injured worker, ask an advocate who works for injured workers, and they will tell you that the light at the end of the tunnel for them is WCAT and they want to get there as quickly as they possibly can. They consider it part of the entire envelope, part of the WCB service package that your own Premier refers to in his letter to Jim Yarrow in this regard.
I'm really pleading with the government, don't set this up -- somebody in the future's going to have to fix this. You may think it's going to be you, we may think it's going to be us and my friends here may think it's going to be them. It doesn't matter; somebody's going to have to fix this. This is not a partisan issue. This is an issue that goes to the very root of financial accountability in the system that deals with injured workers and affordability for the people who pay the bills, and you're leaving a loophole large enough to drive a Mack truck through by allowing these people to make decisions without any accountability or responsibility for their financial positions.
I just don't understand why you can't see that. I'd be prepared to sit down and come up with a compromise amendment that would indeed include, simply by saying, "The board of directors of the Workers' Compensation Board and other agencies" -- we could say "funded by," we could say, "who have a relationship to," "who are part of the service package," we could say it in any number of ways that legal counsel might be willing to draft, but we could clearly send a message that we're not going to allow the B team to override the A team.
Ms Murdock: Well, I've stated it. We're obviously going to agree to disagree. The Tories in 1984, this was a bill setting up WCAT, and though I wasn't here at the time, the legislators of that day sat down and said, "This entity should be separate, independent, outside of the board," and that's the way they set it up.
Mr Mahoney: Then they put them on the board.
Ms Murdock: No. They said that -- yes, they put it, because obviously, and I think that's fair, that the director of WCAT should have some idea as to the direction and policy guidelines direction of the board of directors. That makes sense. He has no vote, has no right to make a decision regarding within the board of directors, but has an idea of where the board is going and can then use that knowledge within his own operation.
Mr Mahoney: And also has the decision-making power to ignore that board policy and to make a decision entirely on his or her own without any tie-in or responsibility to the entire service package. I guess the fundamental place where we disagree is that you see WCAT as being set up as a totally separate entity; a court, a judge. You would not dream of having a judge who is hearing a case sit in on a legislative committee that was making law that could affect his or her decision on that particular case. That's absurd.
Ms Murdock: Just as a judge does not make up new law at the snap of a finger, neither does WCAT. WCAT doesn't. It is to look at policy direction. It makes interpretations as to whether the specifics of a particular case fall within those, whether or not it should go beyond that or how it should go beyond that if it makes that decision. WCAT sets precedents. They send out pamphlets with all of the decisions that come out on it so that advocates on either side can look at the previous WCAT decisions and utilize them in the next case that they advocate on behalf of.
But you make it sound like WCAT sits down and says: "Well, we don't give a damn about what the WCB does. We're just going to make up this new coverage whether they like it or not." I don't think that happens. They do not make decisions out of thin air. They utilize what the board policy is and then a panel of three determines whether or not they think it should go a little bit further, and that's exactly what our court system does. So I don't know --
Mr Mahoney: What you're going --
Ms Murdock: We're disagreeing and we're going to continue to disagree on the role of WCAT and how it operates. But I'll reiterate: Bill 165 does not address that issue, so in that respect you are absolutely correct.
Mr Mahoney: If the fears and predictions are correct, by leaving any reference, and it doesn't even have to be a specific reference, with regard to financial responsibility and accountability to other agencies that impact on the board, if you think of this as who drives the costs, what we're getting at in financial responsibility is costs. What is the system costing? Who drives the cost? I maintain that you and I drive the cost; that obviously injured workers drive the cost initially by filing a claim, and that's what the system is there for, but then there are other people who drive it. There are lawyers who drive the costs; there's a whole industry out there of advocates. We've seen them. We've seen them in our committee hearings, all hovering around, very curious as to the final outcome of all of this.
There are some people who make some pretty fine livings out of being advocates for WCB, and that's fair game. But they drive the costs. There's absolutely no question they drive the costs. They have no responsibility, however, to be financially responsible or accountable to an act or to any kind of bill or legislation or this Legislature or this committee, nor should they. We have no power over them.
What we want is, the people who have the ability to drive the costs should act -- and you would assume that was fundamentally the board of directors, you would assume that, but we know that there are other agencies which drive the cost of this and couldn't give a hoot what the board of directors say about it, or at least in some instances certainly act in that manner. I think what you've done is applied very selective interpretation to the PLMAC process, which you've done frankly throughout this entire process. Every time you get an argument that you think you can use the PLMAC -- Gord Wilson in London said that this bill mirrors the PLMAC process. Well, it's one of those funny mirrors that you see at the CNE every year, that's all distorted, that makes people like me look slim. You know the kind of mirror I mean. I look in all those all the time actually, but it's one of those distorted mirrors, so you're being very selective in trying to interpret that.
Frankly, I think you're being very selective in trying to interpret your Premier's words about the services of the Workers' Compensation Act being provided in a context of financial responsibility by specifically excluding WCAT. Bear in mind that this bill will be interpreted -- in many cases by the advocates and the lawyers I'm referring to who hover around the WCB issues -- not only by the words that are in this bill, but by the debate that takes place at this committee and in the Ontario Legislature. I can just see them rubbing their hands with glee, saying: "What we'd better do now is bypass any internal appeals as quickly as we possibly can and get to WCAT, because the parliamentary assistant in the hearing at Queen's Park on the interpretation of Bill 165 has clearly stated that WCAT has no financial responsibility or accountability. Therefore, we're going to get a decision out of them that will be much better for our clients."
I'm telling you, that's what I'd be doing if I were one of those people. If I were representing one of the injured workers and trying to get a decision, I'd be hauling out the Hansard and I'd be pulling it in to WCAT as evidence and saying: "You have no responsibility to be financially accountable. It's right here in Hansard. Sharon Murdock said it. Therefore, we want you to ignore the financial side of this issue and we want you to make a decision simply and solely based on -- " A, B or C, or whatever it is.
Again, it's a loophole big enough for a Mack truck. You're setting the board up and future governments up for major, catastrophic problems in relationship to the decisions. I can only assume that you are intentionally doing so because of the refusal of the government to address the agencies or, in this case, agency which has a direct impact on driving the cost of workers' compensation costs in this province.
Once again, I guess what I would ask is, at the very least -- I've moved the motion -- that the motion be passed. If that fails, I would ask the parliamentary assistant to consider an amendment that would at least refer to the purposes of the act, which gives us some sense of confidence that it could include all services; or, failing that, to consider an amendment that would deal with agencies that have an impact on the WCB system.
The Vice-Chair: Further discussion? Seeing no further discussion on Mr Mahoney's motion, shall the motion carry?
Mr Mahoney: Recorded vote.
The Vice-Chair: All those in favour?
Ayes
Arnott, Fawcett, Mahoney, Witmer.
The Vice-Chair: All those opposed?
Nays
Ferguson, Hope, Klopp, Murdock, Wood.
The Vice-Chair: The motion is defeated.
Ms Murdock: Could we have a 10-minute recess, Mr Chair?
The Vice-Chair: Sure. This committee stands recessed for 10 minutes.
The committee recessed from 1115 to 1135.
The Vice-Chair: We now have a government motion.
Ms Murdock: I move that section 0.1 of the Workers' Compensation Act, as set out in section 1 of the bill, be amended by striking out "and" at the end of clause (c), adding "and" at the end of clause (d) and adding the following clause:
"(e) to require the board of directors of the Workers' Compensation Board to act in a financially responsible and accountable manner in governing the board."
Much of what I would have said has already been stated in the Conservative and Liberal motions. First of all, we heard during the public hearings that every employer group, I think without exception, came through and wanted this in the purpose clause. We feel that it goes to the capacity of the board of directors in terms of determining under the purpose clause that it should be operating in a financially responsible and accountable manner and in governing the board -- in other words, in performing its duties. I would say that because the imposition of duty is on the board of directors, it is not extending it to the system and that it is a duty that the people who are members of the board of directors would have to look at.
Having said that, it is important to remember that -- and I want it clear, particularly since the last Liberal motion and the discussion that ensued -- under the Corporations Act, boards of directors, regardless of what entity they are board members on, have a responsibility to act fiscally responsible. This is stating a duty that they really already have. Mind you, putting it in the purpose clause, as I said yesterday, I don't think is really legally binding, but that's where the employer groups want it, so we're doing it for them at their request.
Mrs Elizabeth Witmer (Waterloo North): I would concur with Ms Murdock. Much of the debate concerning the purpose clause has taken place yesterday and again this morning, so I'm not going to belabour the point.
However, I would just say in response to what has been said by Ms Murdock that this does not satisfy the business community. This does not respond to the concerns that they have had because, again, it restricts the board of directors to acting in a fiscally responsible manner. It does not refer to the entire administration of the board, the related agencies, the WCAT, the administration.
There is great concern that there will be no consideration taken as the government, which now has control over the board for the next year, continues to make changes, direct the policy of the board, make expenditures of millions of dollars.
Again, there's no impact on the decisions on the larger community and also on the impact on the life of this province in this particular amendment and certainly it does not address the issue of being financially responsible and accountable. We can't support this amendment, I would suggest to you, nor can the business community. This does not reflect the concerns that they had because it does not refer to the entire Workers' Compensation Board administrative structure; it refers only to the board of directors.
What the business community was looking for was the need to ensure that the entire Workers' Compensation Board structure would act in a financially accountable manner. So we're still going to continue to allow the setting of lavish and trendsetting awards and there's great concern that the expenditure of money will continue.
The Vice-Chair: Seeing no further discussion on the motion made by Ms Murdock, shall the motion carry? All those in favour? Opposed? Carried.
Shall section 1, as amended, carry? Carried.
On section 2, there are no amendments. Shall section 2 carry? Carried.
On section 2.1, Mrs Witmer.
Mrs Witmer: "I move that the bill be amended by adding the following section:
"2.1 The act is amended by adding the following section:
"Crown bound
"2.1 This act binds the crown."
The explanation I would give for adding this is that this amendment would bind the crown, and also does accompany the PLMAC purpose clause and I'm not quite sure why the government chose to omit it.
Ms Murdock: We're going to be voting against this, as I'm sure you realize. Right now, basically, if you were to slip and fall as it exists under the act, you really have no -- you would sue, not the board but the onus for liability comes from the consolidated revenue fund and whatever government is in power of the day. We're not going to support this. We'll be supporting our own in terms of changing that so that if there was a slip and fall at Downsview, for instance, the board has the responsibility to cover that from their own funds.
Interjection.
Ms Murdock: Sorry, I'm talking to another section. This is in relation to the purpose clause? Yes. I think the thing speaks for itself. We couldn't possibly agree with the purpose clause binding the crown. Here you are in other instances talking about arm's length and government should not have that ability to go in and direct the board, and you're all concerned about the one year with government direction, or ministry direction. This would definitely give all kinds of directional possibilities to any government minister that was in power. I don't agree with that.
Mr Mahoney: That's really interesting. So what we're really saying here is in relationship to the arguments I made earlier about WCAT, is that the minister doesn't even have to be financially responsible or accountable in this regard during the one year particularly, but even after that, if the crown decides to come in and intervene in some way, there's no responsibility on the government to act financially responsible and accountable in any way whatsoever. Is that what you're saying?
Ms Murdock: The minister even now under the existing act can ask the board to do whatever, but the board decides what it's going to do. If the board chooses not to, then they vote on that and make their decision. That's not going to change.
Mr Mahoney: Except for the first year of the life of this bill, which will presumably be some time in November. The House comes back October 31, so some time in November, December at the latest, this bill will receive royal assent. So for the entire year of 1995, a minister, be it the current one, a new one appointed by the Premier, or a new one appointed by the people, a minister will have the complete authority to ignore the purposes of this bill with regard to not only financial responsibility, but even the responsibility of the board to provide fair compensation, to provide health care benefits, rehab services for injured workers or for their survivors. A minister can come in and just totally ignore the bill. Why would you allow that?
Ms Murdock: The thing is that until the appointment of the new board -- right now it's in transition. There's an interim director. Until the new board works out its protocols and how it's going to operate and how it will operate when they reach impasses -- they've got to set up those kinds of directions for themselves. That's why there is a year. But also I think -- it's pretty clear in that section and we'll be getting to that, I'm sure, later on -- it still has to do it within the performance and the duties of the regular board. The minister is -- under that in that year -- also required to do that.
I would say too that politically -- and you know this as well as I -- a minister doing something that would be completely off the wall or disregarding --
Mr Mahoney: We haven't seen much of that lately.
Ms Murdock: -- the financial responsibility and accountability would be, I think, fairly suicidal. They would do it at their peril.
Mr Mahoney: We're not concerned about you or your boss committing suicide. I find it actually quite astounding that the crown is not automatically bound by its own legislation. It's quite bizarre. Maybe we could get an opinion from the legal staff of the ministry whether or not it's necessary to say that this act binds the crown -- or is that in some way a given in law? Is not the government bound by its own act?
Ms Murdock: I'm going to let Sherry Cohen respond as legal counsel for the ministry, but I would say that all legislation the crown is bound by, but go ahead.
Ms Sherry Cohen: Under the Interpretation Act of Ontario, there is a provision saying that the crown is bound where the legislation itself says it's bound, or by necessary implication it's clear that the crown is intended to be bound. That's why often in legislation you do see a provision, "This act binds the crown." Currently in the Workers' Compensation Act the crown is bound as employer. In the definition of employer the crown is clearly stated.
"This act binds the crown" is certainly not necessary when we're talking about the crown as employer. "This act binds the crown" is saying the whole act, not just the purpose clause. What we have here is really something that is not necessary because it's more getting into I think the ability of a government, this government or a future government, to amend the act. You cannot bind a Parliament or the Legislature in terms of not amending future legislation. This really isn't necessary in that respect.
Mr Mahoney: We've seen over the years numerous cases of -- and this is not even this government -- former governments that have instituted exemptions. Whether it be to an environmental process, they have exempted in the past themselves, whether it be with respect to construction -- I can think in my own community when we built Highway 403 some years ago, there was a provincial exemption under the Conservative government of the day to not require an environmental assessment for work that was done in the valley of the Credit River where the bridges were going over -- and yet, when the city did a bridge to the south, what's called the Burnhamthorpe Road bridge, there was a requirement on the city to conduct a full environmental assessment. When the province came in, not half a mile north of the Burnhamthorpe bridge and built Highway 403, they exempted themselves from the same requirement that the municipality was placed under and simply steamrollered right through the valley with no environmental assessment whatsoever.
Could this not in a sense, without this amendment, allow for the same thing? Could the minister come in, simply declare that he is unilaterally taking over the board, that his decisions will be based on whatever he feels is appropriate, with no financial responsibility, with no compensation responsibilities in regard to (a), (b), (c) and (d) that are currently in the bill? The amendment that you have now passed, presumably binding the board of directors, does not even bind the minister. This is bizarre, if a minister of the crown -- and specifically in this bill, where the minister from the date of royal assent has one year to do whatever he wants with the board. I just find it incomprehensible.
Is there a relationship between the examples I gave, with a government's ability to exempt itself from other provincial regulations, and a minister's power under this act and the amendment that Ms Witmer has put forward?
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Ms Cohen: I'm not familiar with all the legislation you refer to. I do think, however, and perhaps legislative counsel can correct me if I'm wrong, the Ontario Environmental Protection Act does bind the crown. A municipality is not considered the crown in law; that's a delegated body. It's not considered the crown. So municipalities are bound by all legislation; you do not require a specific provision to bind a municipality, unlike the crown, which has special status in law as the crown.
But what we have here, I assume you're referring to the section down the road that the parliamentary assistant will speak to, refers to policy directions that are a reference to the performance of the powers and duties of the board of directors under the act. Therefore, it would be my opinion that the minister could not give a policy direction to the board that was not consistent with the act, and it would be the entire act, not one provision or another.
Ms Murdock: Nor could the minister disregard the board of directors and what its duties were. You wouldn't want that, I don't think.
Mr Mahoney: Could you just help me with this section 65.1, page 5 of this bill? I get all confused with sections of the act and sections of the bill and everything else, so let me refer you to the page number: page 5 of this act, 65.1, where it says, "The minister may issue policy directions that have been approved by the Lieutenant Governor in Council on matters relating to the board's exercise of its powers and performance of its duties under this act."
Could that be interpreted to say that a minister disagrees with a decision made by the board to not include stress as a compensable -- I'm just using this as an example, because it's one we're all familiar with. The board makes a policy decision not to include stress as a compensable injury. Could the minister then come in and, as this says, "issue policy directions...approved by the Lieutenant Governor in Council" with regard to that decision?
Ms Murdock: This is on the supposition that there is no board of directors in place or that there is a board of directors in place?
Mr Mahoney: Excuse me, where does it say that?
Ms Murdock: No, no, I'm asking you.
Mr Mahoney: I'm asking for clarification. We have an amendment by Ms Witmer that says that this act, which would be this entire document, binds the crown. We have one section in the act that says, if I read it correctly, that the minister can overrule -- and this isn't even a one-year deal. This is, "The minister may issue policy directions...approved by the Lieutenant Governor in Council on matters relating to the board's exercise of its powers and" -- this, I think, could be very interesting -- "performance of its duties under this act."
So the board performs a duty that it feels it has and it allows stress to be a compensable injury or it disallows it. Could the minister, under this, without the amendment Ms Witmer has put forward and in interpreting subsection 65.1(1) of this act, policy directions, come along and overrule the board on that?
Ms Murdock: I agree that "performance of its duties under this act" would mean, particularly now with the purposes of the act including financial accountability and responsibility, that that would have to be included.
But in subsection (2), if you look, "In exercising a power or performing a duty under this act, the board shall respect any policy direction that relates to its exercise."
That all has to do under, "The minister may issue policy directions..."
"(3) The board shall report to the minister whenever it exercises a power or performs a duty that relates to a policy direction."
Mr Mahoney: It's fascinating.
Ms Murdock: Yes. I'm not saying that a minister would --
Mr Mahoney: I'm not either.
Ms Murdock: -- or the LGIC would give a direction to the board that would be completely opposed to the principles and directions of the board. I suppose any government can do that if it wished.
Mr Mahoney: Let me take you into the future a little bit --
Ms Murdock: Yes.
Mr Mahoney: -- and assume that you find yourself in the interesting position of being in opposition -- I'm being generous -- and of being the critic of another party in power and the Minister of Labour decides to come along and unilaterally, arbitrarily, counteract by an order in council a decision made by the Workers' Compensation Board.
Let's reverse these. Subsection (3) says, "The board shall report" -- not may report, not shall inform -- "to the minister whenever it exercises a power or performs a duty that relates to a policy direction."
To stick with the example that's clear, understandable and simple: stress. The board makes a decision to include or not include stress as a compensable injury. Under subsection (3), they have an obligation, a responsibility. Under this act, they have no choice; they shall report to the minister. The minister says, "Well, members, ladies and gentlemen, in exercising that power or performing that duty under this act, did you respect any policy direction that relates to your exercise?" They answer, and the minister comes back and says: "I don't agree with you. Under subsection (1) I'm going to issue new policy directions that have no relationship to your responsibility as a board."
Forget that you're the government, Madam Parliamentary Assistant. Forget that. We're giving an inordinate amount of power to a political person here to make a decision with regard to a board policy decision and simply overturn it. I think that's frightening and I think that's counter to the democratic principles around the Legislative Assembly of Ontario to impart that amount of power, from an agency that is supposed to be at arm's length from the government, to an elected official. If that's what you really want to do then maybe we should simply disband the Workers' Compensation system in its entirety, bring it in as a division of the Ministry of Labour and let the minister take the responsibility since he's going to have the power under this particular section.
Interjection.
Do you have anything intelligible to say? I couldn't hear that. Not you. You're --
Ms Murdock: Thank you very much.
Mr Mahoney: No. I would never question the intelligence, just the logic and the believability at times.
Ms Murdock: No, no, never believability. The provision is in there to assist the board in forming its own structures in terms of operating as a corporation. I think all of us would agree, and we've heard certainly if we don't know about it, but I know the critics and myself realize that there have been some operational problems in terms of how things are done at the board and that they are going to have to get themselves organized. In the meantime, that's the only purpose that that section has been there for.
I'll use BC as an example, because BC's experience when it set up a bipartite board was that in order for them to set up their own protocols as to how they would operate in terms of coming to consensual agreements and then when they came up against controversial items and hit impasses, they developed they own protocols and basically went off and did that. In their experience, it was almost a year before they actually had those protocols set up.
So what we're saying is, we are now asking this new board to operate on a bipartite basis. We have experienced already, in the past three years, that when they've hit impasses there is no protocol set up for how they will operate, So they're going to have to hammer that out themselves. While they're doing that then someone has to be steering the ship, and we will be doing that under the act itself and all sections of the act in terms of determining entitlement. There is no intention on the part of this government to suddenly go off willy-nilly and set up new entitlement provisions.
The Vice-Chair: It appears that we're not going to reach any agreement in the near future so this committee will stand recessed until 2 o'clock this afternoon.
The committee recessed from 1201 to 1414.
The Vice-Chair: Mr Mahoney, I think you were about to take the floor on the motion by Mrs Witmer.
Mr Mahoney: Right. We're dealing with the motion wherein the crown is bound by the act that we're dealing with, and I expressed concern about section 65.1 and the potential power of the minister. Just to create continuity, both in my mind and perhaps in the mind of the parliamentary assistant and the staff from the ministry, my concerns were and are around the fact that the minister must be reported to by the board when the board exercises a power or performs a duty relating to a policy direction, and some strong words in there, not "may inform the minister" but "shall report to the minister," which connotes that he's going to be running the show.
Now, we know that for a period of one year the minister, he or she, will have clear power to make decisions on behalf of the board, but this indicates that it will go even beyond that. The follow-up in section 65.2, though, is most interesting. This is actually one part of this bill that I agree with. Establishing a memorandum of understanding that is renewable every five years seems to me to make sense. A lot can happen in five years, and yet you've got to have a reasonable length of time in which to establish policy and do business and see what the effect of that policy is. A three-, four- or five-year period is a reasonable period for a memorandum of understanding to live without review, so I agree with the government in doing this.
The concern I have, though, is that you establish a memorandum. In that memorandum, you address the accountability of the board to the minister -- and that's the very first thing you address in the MOU -- and yet that's already clear in the section preceding 65.2, where it says "the board shall report to the minister," "the minister may issue policy directions" etc. There seems to be a contradiction wherein it's defining, in the previous section, section 1 of the memorandum of understanding.
Then the memorandum of understanding lays out the reporting requirements of the board to the minister. Once again it says here that the board "shall" report to the minister on policies; once again it's contradicting. It will deal with "matters of government policy that the board shall respect in the conduct of its affairs." Once again, the minister has a hammer in the section preceding this to come in and tell the board that it's going to do certain things certain ways, whatever way he decides.
Then, of course, the catch-all that you see everywhere in this bill: "Any other matter that may be required by order of the Lieutenant Governor in Council," and "any other matter agreed to by the board and the minister." That I don't mind. At least there's a requirement for some kind of consultation implied there and some kind of agreement to be entered into between the minister and the board, even though the hammer that the minister has over the board in the previous section would seem to place the fifth clause in the memorandum of understanding in some jeopardy.
So I think this whole section really creates a serious problem, particularly when you refuse to accept an amendment wherein the act binds the crown. It just seems to me that you're putting handcuffs of your own design on the board. You're not restricting agencies that impact on the cost, the policy or the running of the board, such as WCAT; you're entering into a memorandum of understanding between the minister and the board, which in its own definition and terms could be fine, but then you're putting the clause in it that allows the minister to just forget all of the rest of this stuff and do whatever the heck he or she wants.
I again ask the parliamentary assistant to look into the future and see herself in the role of being critic to the Minister of Labour of some other government. I wonder how she would feel about that minister having this kind of draconian power at his or her disposal.
Ms Murdock: I can certainly look into the distant future perhaps and see that, but I would say that it is only going to be in place for a year; not the memorandum of understanding for 65.2, but under 65.1, and it is, as I have stated earlier, for the purpose of giving the corporate board of directors the opportunity to set up their own protocols. I don't see that as being draconian; I see that as being wise management.
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Mr Mahoney: Help me with the one year. What section is that?
Ms Murdock: Subsection 65.1(4).
Mr Mahoney: Then you're going to have, following that, a memorandum of understanding after one year. During the year, you quite agree, the minister will have carte blanche?
Ms Murdock: Well, he has to act within the purposes -- or within the scope of the act.
Mr Mahoney: No, he doesn't. It doesn't say that.
Ms Murdock: I know, but he --
Mr Mahoney: Where does it say he has to act within the purposes of the act? Would you like to make that an amendment?
Ms Murdock: Not within the purposes of the act. I did correct myself. I said within the scope of the act.
Mr Mahoney: So he doesn't have to act within the purposes.
Ms Murdock: He can't do anything illegal.
Mr Mahoney: No, but he can expand coverage.
Ms Murdock: Well, okay, in terms of entitlement, I would agree with you that he probably could.
Mr Mahoney: He could increase rates.
Ms Murdock: Well --
Mr Mahoney: I'm not saying, "Would he?" I'm not even saying it would be the current "he" that would make that decision.
Ms Murdock: No, I know you're not. Okay, technically, I suppose, when you look at that, within that year he has a lot of power.
Mr Mahoney: A minister could increase rates. Do you agree?
Ms Murdock: With cabinet approval, yes.
Mr Mahoney: A minister could decrease benefits.
Ms Murdock: Just a minute. I know what you're saying. I would like them to explain it, because I am obviously not understanding it as clearly as they do.
Mr Mahoney: Fine.
Ms Murdock: Go ahead.
Mr Mitchell Toker: I'll respond to the question about decreasing benefits. Benefits are established in the legislation, so a direction could not decrease benefits.
Ms Murdock: Oh, I see.
Mr Mahoney: Mitch, with due respect, this act does not bind the crown. That's an amendment we're trying to put in place now. If the crown is not bound by the legislation and the minister may issue policy directions, albeit approved by cabinet, how can you say they can't decrease benefits or increase -- well, take decreased benefits, because you point out that's established by legislation. They could change that.
Ms Murdock: No, they can't. He can't. It would have to be legislatively changed. The minister could bring forward a bill that would legislatively change benefits, either increase or decrease or whatever the case may be, but it would have to be done legislatively for that kind of thing.
Mr Mahoney: Could it be done by regulation?
Ms Murdock: No, because it's in legislation that it's 90% of net. If you wanted to change 90% of net to 80% or 100%, you would have to do that through the legislative process.
Mr Mahoney: So what kind of policies? We know that rates are not set by legislation, so rates could be changed, correct? I just want to understand what kind of power this minister of workers' compensation is going to have, because that's what you're creating here, potentially, a minister of compensation.
Ms Murdock: For one year.
Mr Steven Offer (Mississauga North): Who wants that job?
Mr Mahoney: Yes, who wants that job?
Ms Murdock: We're time-limiting it in the Workers' Compensation Act. The same provision exists in OTAB and it exists in the Power Corporation Act. That's where we got the wording, and the purpose is for a one-year period. As you and I know, to get anything changed oftentimes takes longer than a year. I wish it wasn't the case, but it does. I know your point that you're making, and you have made it: that a minister, whoever that is, could possibly use this beyond the intention of this government. However, the intent of this is strictly for the purposes of transition.
Mr Mahoney: I don't believe that any government would draft legislation with a hammer as strong as 65.1(1), (2) and (3) without some kind of intent, or if not intent, at least anticipating some possible requirement to use it. In other words, they put in the new board, they go through the transition, they're not happy with the policy directions of the board, in whatever way.
The other example, aside from increasing rates: You say they can't decrease benefits. I accept that. That's 90% of net. They certainly can change the level of compensable injuries. They certainly can expand coverage. They certainly could include other people in the workers' compensation system who are currently not included, ie, 700,000 workers who are excluded throughout the province. The minister could unilaterally make those kinds of decisions.
My submission is that a decision that would impact on this system, rightly or wrongly, is one that should be done after public consultation, after committee work, through legislation, through full input by injured workers and by managers and by advocates and by everybody, not to mention legislators, and should not be put in that kind of power. I don't know if there's a precedent; maybe there is.
Ms Murdock: Yes, there is. OTAB we did; we put it in and it's for ever, it's not a time-limited one, and the Power Corporation Act. I don't know which government did that but it doesn't matter, it wasn't ours, and it put it in with no time limitation either. So there is precedent for this, number one.
Number two is, to change something like what you're suggesting in terms of including banks or that kind of thing would require a regulatory change. It doesn't require a legislative change, but it would require a regulatory change because you'd have to change the schedule, you'd have to change that kind of thing.
With the growing, and I'm saying this positively, I think, that everything's being done with advisory groups of the stakeholders nowadays, it wouldn't be done in a short period of time. I would think that almost all those kinds of decisions would take a long time, just generally speaking, even without this provision there.
Mr Mahoney: There are some pretty dramatic differences, probably, in the nature of the funding with OTAB and the Power Corporation Act versus the WCB, the fact that WCB is probably seen somewhat as an arm's-length -- it's certainly arm's-length whenever the minister has to answer a question about it in the Legislature. It becomes, "Oh, we don't want to go near that little baby." It becomes arm's length there --
Ms Murdock: All the more reason then to be very careful about this section.
Mr Mahoney: -- and then it comes close to his bosom whenever he's trying to impress the injured workers or whomever else he may be trying to pull a vote from.
I recognize that there are some dramatic differences between those corporations, but I think in some sense you've answered my question. You have admitted that this gives an unusual amount of power to the minister and to cabinet over an agency that heretofore has been seen as operating, hopefully, at some arm's length and with responsibility by a board, albeit a board appointed by the government, and sometimes politically influenced, we might add, by any government, not just yours. That's an issue I feel very strongly about.
But I think you really do serious damage by putting in place 65.2 with the memorandum of understanding and then totally, in my view at least, for one year destroying the impact of that in 65.1. I would reiterate that I think the motion by Ms Witmer binding the crown is a very appropriate motion and should be adopted. It would solve many of those concerns, if not all of them.
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The Vice-Chair: Further discussion on the motion by Mrs Witmer? Seeing none --
Mr Mahoney: Recorded vote.
The Vice-Chair: All those in favour?
Ayes
Arnott, Mahoney, Offer, Witmer.
The Vice-Chair: Opposed?
Nays
Duignan, Ferguson, Hope, Murdock (Sudbury), Rizzo, Wood.
The Vice-Chair: The motion is defeated.
A government motion is next.
Ms Murdock: Which one is it? I have three PC motions.
The Vice-Chair: New 2.1, numbered page 6.
Ms Murdock: All right. I move that the bill be amended by adding the following section:
"2.1 The act is amended by adding the following section before part I:
"Training agencies placing trainees
"3.1(1) In this section,
"`placement host' means a person with whom a trainee is placed by a training agency to gain work skills and experience;
"`training agency' means,
"(a) a person who is registered, under the Private Vocational Schools Act, to operate a private vocational school; or
"(b) a member of a prescribed class who provides vocational or other training.
"Election: trainees as workers of training agency
"(2) A training agency that places trainees with a placement host may elect to have such trainees considered to be workers of the training agency during their placement.
"Restriction on election
"(3) Only a training agency that is in an industry included in schedule 1 or 2 may make an election.
"Effect of election
"(4) Upon the board receiving written notice of a training agency's election, the following paragraphs apply with respect to each of the trainees the training agency places with a placement host:
"1. The placement host shall be deemed, for the purposes of this act, other than subsections 10(9) to (12) and section 16, not to be an employer of the trainee.
"2. The training agency shall be deemed, for the purposes of this act, to be an employer of the trainee and the trainee shall be deemed, for the purposes of this act, to be a learner employed by the training agency.
"Exception
"(5) Subsection (4) does apply with respect to trainees who receive wages from the placement host.
"If trainee injured
"(6) If a trainee in respect of whom subsection (4) applies suffers a personal injury by accident or occupational disease while on a placement with a placement host then, despite subsection (4),
"(a) the trainee's benefits under this act shall be determined as if the placement host was the trainee's employer;
"(b) section 54 does not apply to the placement host or the training agency.
"Revocation of election
"(7) An election may be revoked by giving the board written notice of the revocation.
"Effective date of revocation
"(8) A revocation takes effect 120 days after the board receives written notice of it.
"Limitation on revocation
"(9) An election that is revoked continues to apply with respect to an injury suffered before the revocation takes effect."
This was brought forward -- and I do apologize to all of the committee members and I thank you for your patience and graciousness in allowing this to be brought forward -- by the Minister of Education, who asked if we would include it in terms of assisting the private training agencies in the province.
As many of us recall, about a year or so ago we had the whole issue of coverage under workers' compensation for students who were going into particularly hospitals, as I recall. They were having problems getting coverage and the training place in which they were learning their craft or their skill didn't want those people, should an accident occur, included on their workers' compensation rolls, and that's fair. So we arranged, for public training schools, that the schools would pay for it through a special fund and so on.
But it did not cover in any way, shape or form the private school situation. This motion will cover those private schools and we've had lots of requests from the private schools to do this. Otherwise, if an employer says no to the persons going on the training course, then they can't get that placement, and it puts those students in those particular schools at a significant disadvantage. That is why we're bringing it forward.
Mr Mahoney: I understand there is support for this in the industry as well and they've consulted and are supportive, and I will certainly be supporting it as well.
Mrs Witmer: I think I need to just clarify a few points related to this situation. I hear you saying that at the present time then the private schools are having some difficulty, as far as finding placements for their students, because the employer doesn't wish to pay the WCB costs.
Ms Murdock: Yes. Basically that's the bottom line. They can find places but they could find more. Some employers are saying, "We'll take on that student and the possibility of injury and we'll pay his or her workers' compensation premium," but other employers are saying no, they won't take that chance. They'll take the students if someone else pays for them, because it does affect their workers' compensation premiums if those students were to get injured while they were working in that placement.
I understand the employers' concern. They don't want their workers' comp premiums going up, because the number of accidents of course increases their assessment rate and so on. So this actually helps the employers make the decision to take those trainees, but it also helps the training schools to place their students and get more employers who would volunteer to take on student trainees.
Mrs Witmer: What will happen now in the event of these private schools? Will they in essence pay the WCB costs of all students who are placed, or will it be a mixed-bag approach where the employers who are willing will pay the WCB costs, and those who are not willing, the private schools will pay the costs? What's going to happen?
Ms Murdock: When I was reading this, it's elected by the training agency. The agency makes the election. Obviously, if they're put into a place that isn't covered, such as a bank, then there isn't any workers' compensation premium involved.
Mrs Witmer: It's going to mean that in some cases the schools will cover the trainee and in other cases the receiving employer.
Ms Murdock: If the employer is willing to do that, but let's face it, if the employer has an option, why would he pay for somebody else's workers' compensation premium if he didn't have to? I can't imagine. I think once this is in place, what will happen is the training agencies --
Mrs Witmer: Will pay.
Ms Murdock: All of the employers will opt for that coverage.
Mrs Witmer: Then the WCB costs actually will be put upon the students in increased tuition fees. Obviously, the cost is going to have to be covered somehow.
Ms Murdock: I don't know the answer to that.
Mrs Witmer: It is the school that's then going to be picking up the cost, as opposed to the employer.
Ms Murdock: Depending on what their classification is under the board and so on.
Mrs Witmer: We certainly had problems originally with the decision to require WCB coverage for students. Now that this obviously is the policy of this government, then in all fairness to the students who are being impacted, we will allow this amendment to pass and we would support it.
Ms Murdock: Thank you.
Mr Offer: I just have a quick question. Dealing with the restriction on election, which is subsection (3), you had used the example in a certain circumstance: for instance, that a bank may be a trainee and it could make an election, but it can't make an election.
Ms Murdock: That's right.
Mr Offer: I just wanted to get that clear. Banks don't have the right because they are not one of those --
Ms Murdock: I did say that if they went to a group that wasn't covered, there wouldn't be any coverage required.
Mr Mahoney: Just to clarify and follow up on the point Ms Witmer made about who would pay for it, in fact the WCB in many instances would simply absorb the cost.
Ms Murdock: That's right. That's what they have done in the past, which ends up putting more onus on the central fund.
Mr Mahoney: So the reality is that all business ultimately would be paying for this in premiums. I guess the argument would be that business in general benefits from a better-educated, more highly trained workforce. That's the rationale behind it, but I don't know. If it turned up in the tuitions, the tuitions might be paid by the WCB or they might be paid by someone else you could see in sending them for training. Those costs could be absorbed right by whoever is requiring the training. It could be the employer who could pay them directly.
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Ms Murdock: I don't understand what you mean, I'm sorry, when you're saying that tuition could be absorbed by --
Mr Mahoney: If the WCB is sending someone, as it does now, to schools for retraining or things of that nature, are we not including those individuals in this situation? They're paying a certain amount of money to retrain or re-educate. There was an issue where they were sending students for upgrading in math and English at costs of $10,000 per course. Would that not include these costs?
Ms Murdock: You're saying when a training school sends its people off to, I don't know, a co-op program where they get training on the job at specific jobs. When they apply to that particular school, the understanding is, "I'm going to this school and I'm going to get on-the-job training somewhere with some employer," and it would be part of their tuition costs. But I don't know whether or not any workers' compensation training course would be involved in that.
Mr Mahoney: I guess it's how far you extrapolate it. It seems to me that much of the cost of this would be absorbed by the system and ultimately by the employers who support the system.
Ms Murdock: I do know that this particular amendment has been requested by the schools and the schools themselves have stated that they are willing to pay the workers' compensation premium.
Mr Mahoney: I'm not saying it in a form of creating a problem, just in a form of understanding it myself, seeing it as a reality.
Ms Murdock: Mitch says that he can probably clarify this, hopefully.
Mr Toker: Mr Mahoney, if I understand you correctly, you're referring to when the Workers' Compensation Board stands in the shoes of an organization.
Mr Mahoney: Right, which happens quite often.
Mr Toker: Which happens quite often, that's correct. In those cases it's the accident employer, it's the original employer of that injured worker that would bear the costs of the retraining and the costs of possible future injury.
Mr Mahoney: And the premiums?
Mr Toker: The premiums would be related to that accident employer.
Mr Mahoney: Okay.
The Vice-Chair: Further discussion?
Ms Murdock: I just want to thank everyone because in order to get this to go through --
Mr Mahoney: You shouldn't do that until after the vote.
Ms Murdock: -- unanimous consent is required and I do appreciate the fact that unanimous consent from the opposition parties has been given.
The Vice-Chair: Seeing no further discussion, all those in favour of new section 2.1 moved by Ms Murdock? Agreed? Carried.
Next, we have a PC motion.
Mr Ted Arnott (Wellington): I move that the bill be amended by adding the following section:
"2.2 The act is amended by adding the following section:
"Conflict
"2.2 In the event of a conflict between this act and any other act, this act prevails unless the other act states that it is to prevail over this act."
The point of this amendment is to further continue to promote the concept of the PLMAC process and the purpose clause that was agreed to through that process. This amendment reflects the PLMAC agreement and the purpose clause.
Ms Murdock: When I read this I just said: "I don't know what this means. Have Elizabeth explain it." Basically, if I'm reading this correctly, it says if there's a conflict, this act prevails unless another act states that it's to prevail over this act. That's the way it works now, so I don't see what this is doing and that's what I need to have explained to me. It doesn't change anything, so I don't know why we would bother putting it in.
Mrs Witmer: If it doesn't change anything, you can support it.
Ms Murdock: But you just don't put things in legislation just because -- I don't even know what for.
Mr Mahoney: I have to agree that I need some assistance from the Conservative caucus to tell me what this bafflegab means.
Mrs Witmer: As Mr Arnott has attempted to point out, if you had passed our original motion to put back in the original PLMAC purpose clause, this actually would have been consistent with that purpose clause. However, given that it hasn't been supported, this in some ways is -- we'll withdraw it.
The Vice-Chair: Mr Arnott has to withdraw.
Mr Arnott: Yes, I will withdraw it.
The Vice-Chair: Would you like to move the motion on page 8, Mrs Witmer?
Mrs Witmer: I move that the bill be amended by adding the following section:
"2.3 The act is amended by adding the following section:
"Five-year review
"3.1(1) Five years after this section comes into force and every five years afterwards the Provincial Auditor shall review the Workers' Compensation Board and report to the Speaker of the assembly.
"Advisory committee
"(2) The Provincial Auditor shall appoint an advisory committee of representatives of employers and workers to assist the Provincial Auditor in the review.
"Report contents
"(3) The Provincial Auditor's report may recommend changes to the Workers' Compensation Act or the memorandum of understanding required under section 65.2."
What we are suggesting here, of course, is a mandatory five-year public review of the Workers' Compensation Board by the Provincial Auditor, and he or she is to be assisted by an advisory committee of relevant stakeholders. We have suggested that the employer and employee communities, obviously, assist in that work, and also that auditor's report could recommend changes to the Workers' Compensation Act or to the memorandum of understanding based on any review that is done.
I think one of the concerns we have had expressed on numerous occasions by people in the House and elsewhere is the fact that this act has not been reviewed on a regular basis. It has not at times responded to the present-day needs of the modern workplace and so we are strongly suggesting that this type of review take place. They're actually doing this in the province of Saskatchewan. They have enacted in the province of Saskatchewan a very similar provision as we are suggesting here. Also, if you take a look at what's happening within the Workplace Health and Safety Agency, we presently have a similar review taking place in that agency by Dr Carolyn Tuohy. So we're saying, why not ensure that the board be reviewed on an ongoing basis, and we're suggesting a time period of five years would be the most appropriate.
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Mr Offer: I just have a couple of questions. I don't know if Ms Witmer or legislative counsel might be able to assist. Right now, under the current rules, is it not within the scope of opposition parties or indeed government to request provincial auditors to inspect any agency and/or ministry?
Mr Randy R. Hope (Chatham-Kent): The public accounts committee can request it.
Mr Mark Spakowski: I don't have the answer to that. The clerk may know something about that in relation to the public accounts committee.
Clerk of the Committee (Ms Tannis Manikel): Having been clerk of the public accounts committee, I'm aware that the minister can request the Provincial Auditor to perform a special audit, or the standing committee on public accounts may request it, or the Legislature as a whole. If I remember correctly, and this is based just on my memory, I don't believe that individual members could go to the auditor requesting a special audit be done.
Mr Arnott: You can make the request, but you can't compel them to do it.
Clerk of the Committee: Yes, you could make a request. He probably, and this is just going by past auditors, would indicate when they were next planning on doing a review of that area and discuss that with you.
Mr Offer: A question then is, in the normal course of estimates could the Workers' Compensation Board be part of that?
Ms Murdock: Of what?
Mr Offer: In the normal course of estimates process.
Mrs Witmer: You're doing the whole ministry.
Ms Murdock: I'm saying no.
Clerk of the Committee: The Ministry of Labour is, but I can't say for sure if -- I haven't worked on estimates for a while and I can't say for sure whether or not the Workers' Compensation Board per se would be.
Mr Offer: Then I guess my next question is to Ms Witmer. On the basis of the amendment, is it the position of your party that you believe that the Provincial Auditor should be able to recommend amendments to any legislation in the province?
Mrs Witmer: No, I can't speak for other legislation. We're only speaking to the Workers' Compensation Board at the present time.
Mr Offer: I was just asking the question in order to get some clarification on the section and whether this could serve as a precedent for an expansion of the duties, in principle, of the Provincial Auditor in order to do something greater than the type of audit that the auditor now performs.
Mrs Witmer: No, it would certainly not be our intention, nor was that ever discussed, that we would expand the duties of the Provincial Auditor. We're simply concerned at the present time with the state of the WCB. We felt very strongly that this was an appropriate motion, to look at having a review every five years.
Mr Mahoney: Just to get some clarification as to how the audit by the Provincial Auditor of the decision to build a new building at Simcoe Place took place, was that directed by the minister? Was that requested by the Legislature? The Provincial Auditor's audit of the process to build Simcoe Place, how did that come to occur? Requested by public accounts?
Ms Murdock: Yes, it was. He wasn't giving a report and public accounts had the Provincial Auditor look at Simcoe Place. It was not at our request or at yours.
Mr Mahoney: It would have had to have been agreed to by the government because it controls the public accounts committee.
Ms Murdock: We're not going to disagree. Why would we disagree with something being examined by the Provincial Auditor?
Mr Mahoney: So you agree with this amendment?
Ms Murdock: No, because I think it's covered in section 77 of the act as it exists already.
Mr Mahoney: Could you help me there? How is that?
Ms Murdock: Section 77. There is no time frame. That's the only difference, but, "The accounts of the board shall be audited by the Provincial Auditor or under his or her direction by an auditor appointed by the Lieutenant Governor in Council for that purpose and the salary and remuneration of the auditor so appointed shall be paid by the board as part of its administrative expenses." It goes on. The Provincial Auditor already has the opportunity to do that and, as was evidenced in its report to public accounts, he's already made recommendations on changing the MOU. He does a lot of that already.
Mr Mahoney: I just wonder if your objection is the five years or if your objection is the advisory committee.
Ms Murdock: I think the Provincial Auditor should be able to audit the books of the Workers' Compensation Board at his or her discretion and not be limited to a five-year -- I think if he wants to do it annually, that's his prerogative, or if he wants to do it every five years or every three years. I think that's what he's in that job to do.
Mr Offer: Your concern with the five years is that it binds the hands of the Provincial Auditor to not look at the system more than once every five years. If the amendment were changed that gave the Provincial Auditor the right to conduct an audit of this kind every five years at a minimum, so that you wouldn't be binding the hands of the auditor, the auditor could go in every year if the auditor so wished but at least once every five years, would you be agreeable to that?
Ms Murdock: Under the existing legislation, he already has the right to do it as frequently as he wishes, and I think that's covered. In terms of the subsection 3.1(2) portion, "...shall appoint a advisory committee of representatives" from labour and management, the man is an accountant, the present one is an accountant. They usually are. He's got staff who are there. He goes in and he does an audit of them. I don't think he needs that. I personally think it's setting up another advisory committee. Here I am speaking on behalf of the Provincial Auditor, but I don't think he needs that.
Subsection 3.1(3): He does that already. I don't think I've heard him make any recommendations to change the Workers' Compensation Act, at least not in my four years here, but he certainly has made recommendations as to how the board should operate and what its memorandum of understanding should be stating.
Mr Randy R. Hope (Chatham-Kent): Just to look at the amendment, first of all, at the beginning of the process dealing with the amendment, I won't be supporting it for the simple fact that I believe the royal commission has an obligation to go out to the general public, because in this bill we're only dealing with part of a problem that exists for injured workers, corporations, everybody in the public in general. I believe that putting something like this into place only alleviates, whether it be our government or the next government, saying, "Let's just wait and see what the Provincial Auditor says versus the consultation that will take place around the royal commission."
I believe that what we're trying to do through this amendment is just prolong a process. We are introducing amendments to workers' compensation which hopefully will address some of the problems that are faced by individuals out there, whether it be through the injured worker group, the union group or the employer group. But one of the things that we mustn't forget is that we are in full support of bringing forward the royal commission to deal with the whole issue of disabilities in this province, whether it be through a universal disability program or whether it be just straightening up this workers' compensation.
I just want to keep people's thoughts in perspective, that as we try to reform this system with the new management structure that's coming in place with this legislation there is an overall objective, which I believe is on all parts of every political stripe, the overall total reform of assistance to deal with both the employers' needs and the injured workers' needs and the issue of making sure that there's vocational rehabilitation in place, to make sure that there's adequate training in place. Those important things might not necessarily just be one disability program that exists in our province but a number of disability programs that have to be brought under one roof.
I won't be supporting the amendment, as I stated earlier. I just feel it's going to be a waffling part, that people will say: "Let's wait and see what the Provincial Auditor says. Let's wait and let's wait and let's wait," and nobody, again, will actually deal with the problem of workers' compensation. We've clearly heard from a number of presenters about the lack of claims adjudicators' ability to function appropriately with claims. We've heard constant bickering for years. We weren't just talking about claims that happened under Bill 162 of the Liberal government or any other bill; we've heard numerous complaints for many years.
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I just ask members who are going to be voting on this to keep in mind that the overall objective is to put these midterm changes in place and then from there to get the royal commission out to the general public to meet with the injured workers' groups, to meet with the union groups, to meet with the employers' groups and develop a strategy which deals with people who have been injured by workplaces, making sure that there are programs in place to adequately meet their needs in making them a key part of our society.
I won't be supporting this amendment. All I feel is that it's a slough and putting it off for a later date.
Mr Arnott: I think it's a reasonable amendment. I just wanted to ask a question of the parliamentary assistant, because I believe you said in section 77 of the existing act --
Ms Murdock: Of the whole act, yes; this is a bill.
Mr Arnott: Right. Section 77 of the existing act allows the auditor to come in and audit?
Ms Murdock: Yes.
Mr Arnott: But as I understand it, this amendment would require --
Ms Murdock: Well, not "allow" it; it's a "shall," it's a requirement. It says, "The accounts of the board shall be audited...," and then there are provisions in the act that say that the board must file annually its reports -- now, this will surprise you because it certainly surprised me -- to the superintendent of insurance as well as to the Minister of Labour, and then the Minister of Labour is to submit that report to the cabinet and then before the assembly. Subsection 78(2) is probably relevant. It was after this that it went to public accounts and then after that, for instance, that Simcoe Place was reviewed. It's in the act already is what I think and I wouldn't want to hamstring our friend the Provincial Auditor.
Mr Arnott: Neither would I. As I understand it, and as was requested by the Ontario Hospital Association, it would be a minimum of every five years, a full audit, and it wouldn't be just every five years, it would be that at the very least.
Ms Murdock: Yes. There is no time frame in here, so if the auditor wished to do this on an annual basis, the auditor could do that, if he wanted. He does do it now.
Mr Arnott: He annually audits the Workers' Compensation Board?
Ms Murdock: The board's books.
Mr Arnott: However, who does he report to?
Ms Murdock: The auditor?
Mr Arnott: Yes.
Ms Murdock: Thus far he seems to have reported to the --
Mr Arnott: Legislative Assembly.
Ms Murdock: Yes.
Mr Arnott: Do we annually get a report from the auditor on the Workers' Compensation Board is what I'm getting at?
Ms Murdock: I don't know.
Mr Arnott: I don't think that we do.
Ms Murdock: I'd have to ask.
Mr Arnott: We annually get a report from the auditor and it's got all the horror stories of the waste.
Ms Murdock: I mean, it's included within his total report.
Mr Arnott: But whether or not there's always a specific explanation of what's going at the Workers' Compensation Board and how efficiencies could be gained and how money is being wasted, whatever, I don't think, to the best of my knowledge, that we get that every year.
Ms Murdock: We went through, I think that it was five committees that this standing committee -- no, five total that we've gone through on some WCB matter. Are we back into the value-for-money audit?
Mr Arnott: I'd like to see those too. We talked about that four years ago.
Ms Murdock: Because that has nothing to do with this.
Interjection.
Mr Arnott: No, value-for-audit of the administration.
Ms Murdock: The Peat Marwick Thorne auditor's report to the Workers' Compensation Board, the Minister of Labour and the Provincial Auditor, the chartered accountants Peat Marwick Thorne, pursuant to the Workers' Compensation Act and the provision -- I'm going to paraphrase -- that it should be audited by the Provincial Auditor, "We have audited the balance sheet of the WCB as at December 31, 1993," and it proceeds to go through, which every member in the House gets.
Mr Arnott: That's the report of the board.
Ms Murdock: This is done annually. The 1993 annual report --
Mr Arnott: Of the board.
Ms Murdock: Yes, and we all get that and what the auditor did was he had Peat Marwick Thorne do the audit.
Mr Arnott: Right, so he's just substantiating that the dollar figures in the report are accurate and represent the true financial position of the board.
Ms Murdock: Yes. Now, given what the past few years have been with the Provincial Auditor we presently have, I would say -- I mean, I don't know whether other provincial auditors have done that, but if he has felt that there was a glaring mistake or something should be done, he has not been silent on the subject.
Mr Arnott: Right. But we still think the intent of this is to provide the members of the Legislature the report at least every five years, which would give, hopefully, recommendations --
Ms Murdock: And that it has been audited and reviewed by very competent --
Mr Arnott: -- similar to the auditor's annual report that he presents to the Legislature --
Ms Murdock: Yes, over and above that.
Mr Arnott: -- which specifically gives helpful -- maybe the government of the day doesn't find it as helpful as the opposition -- recommendations as to how government spending could be changed that would be in the public interest, and waste that could be eliminated.
Ms Murdock: That's where the auditor puts it in his own report, usually.
Mr Arnott: Right. Again, there are not always recommendations on the Workers' Compensation Board.
Ms Murdock: No, not unless he chooses to make them.
Mr Arnott: Hence the need for this amendment.
The Vice-Chair: Thank you. Mr Mahoney.
Ms Murdock: Can I --
Mr Mahoney: Do you want to add something?
Ms Murdock: I just wanted to ask whether or not you consulted with the Provincial Auditor when you did this.
Mrs Witmer: No.
Mr Mahoney: I think the principle involved here of putting in place some requirement for the Provincial Auditor to report to the Speaker and ultimately to the assembly is a good principle, but I think this amendment will add tremendous confusion to the system. Section 77 of the overall act, as the parliamentary assistant has already pointed out, uses the words, "The accounts of the board shall be audited by the Provincial Auditor." "The board shall after the close of each year file with the Minister of Labour an annual report...." "The Minister of Labour shall submit the report to the Lieutenant Governor in Council" and lay it before the assembly. It seems to me there is a process in place that's quite clear, and we don't have to wait five years.
The reason I asked about how the somewhat damning report of the Provincial Auditor on the process involved around the decision to build Simcoe Place arrived on all of our desks is because quite clearly it would fly in the face of the democratic process for any government, majority or otherwise, to refuse to allow the Provincial Auditor, upon the request of both opposition parties in the Legislature, access to go in and audit any government agency. I just frankly think that the heat would be so extreme on any government that tried to stonewall that type of process.
I also think that "an advisory committee of representatives of employers and workers to assist the Provincial Auditor" is a little bit bizarre, because an audit by a Provincial Auditor would be, I would think, as in the case of Simcoe Place, twofold. It would be the dollars and cents and it would be the process under existing government legislation. If you'll recall, the Provincial Auditor felt that there was a requirement upon the board to come to cabinet for approval of the building. They didn't do that and they used their interpretative powers to decide that they could bypass the cabinet route because they were only tenants in a building that the WCB investment fund owned, which is bizarre in itself. But in any event, they made that decision and they were duly slapped by the Provincial Auditor.
I can't imagine that a group of employers and workers whose primary focus and interest is on the day-to-day operation and on benefits and on getting people back to work, which is where I think we want to focus their efforts, would add to a Provincial Auditor's report in that regard. I think it would be an undue layer of bureaucracy and very confusing. I also find it almost bizarre to imagine a Provincial Auditor coming in with a number of amendments to the Workers' Compensation Act itself, which is what the third part says.
While the heart may be in the right place to ensure that there is a provincial audit of this system on a regular basis because of the financial problems we've seen, I think this particular motion would create a great deal of confusion.
The Vice-Chair: Seeing no further discussion on the motion by Mrs Witmer on section 2.3, all those in favour? Opposed? Defeated.
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Mrs Witmer: I move that the bill be amended by adding the following section:
"2.4 The act is amended by adding the following section:
"Commission to examine governance of board
"3.2 (1) The minister shall appoint a commission to examine how the board is governed.
"Recommendations: multistakeholder board
"(2) The commission shall make recommendations as to how the board of directors of the board can be constituted to include representation from employers, workers, injured workers, professionals and the public."
This amendment really is designed to ensure that the anticipated royal commission, whenever it is going to be properly and duly constituted and individuals named, does indeed review the structure of WCB governance because, as I've indicated a number of times, I'm really concerned that we're dealing now with a piece of legislation, Bill 165, which in some ways does compromise the work of the royal commission. This is a very short-term solution to a very long-range problem and I believe it's absolutely essential that the issue of governance be looked at very, very thoroughly, so our intention is that the issue of governance would be closely examined and the best structure determined by the royal commission that's going to be doing the investigation.
The model we have in Bill 165, of course, calls for a bipartite model. We know that bipartism is not successful. We've certainly had that demonstrated as far as the Workplace Health and Safety Agency is concerned. That particular board has been extremely problematic. We also have discovered that the Premier's own PLMAC committee, which was bipartite employer and employee, was not able to reach consensus and come up with a piece of legislation that did reflect the position of both sides, so I think we have ample proof that bipartism does not work. This motion does stem out of our concern that we look at a different governance model than what we have before us.
Unfortunately, bipartism has been characterized in recent years, whether it's in the PLMAC or in the WHSA, by unresolved -- well, I guess they haven't been able to resolve the differences of opinion. In the case of the WHSA, we've seen a tremendous amount of bickering and we've seen it; it simply does not work. We are very strongly suggesting that instead of a bipartite board, we would like to see a multistakeholder board. That position was certainly supported by many of the presenters that appeared before the committee. We would hope that within the board we could have the injured workers represented, members of the public; the medical community. I hope the government will recognize that bipartism doesn't work and that they will support the motion we have placed before you this afternoon.
Mr Mahoney: I'm just a little confused. I'm delighted that you've embraced the concept in Back to the Future of a board consisting of multistakeholders, but I'm just a little unsure when you say, "The minister shall appoint a commission to examine how the board is governed." Are you talking about a commission that would be examining that board on an ongoing basis? Are you talking about a commission that would go at the same time as the royal commission? Are you talking about the royal commission?
Mrs Witmer: Yes, we are talking about the royal commission, Mr Mahoney, and that was the reference that we are making here. We want to ensure that would be one of the obligations and responsibilities that is given to the royal commission, to take a look at the composition of a multistakeholder board.
Mr Mahoney: I certainly agree with that but I wonder how that fits into this. The way I would interpret this motion, this amendment, is that it reads, "The minister shall appoint a commission to examine how the board is governed," which would seem to be a separate commission from the royal commission, which is not your intent, based on the answer to my question.
I wonder if the motion more appropriately should just -- this should be amended to simply say that the royal commission be requested to examine the multistakeholder board concept. That certainly I could support. I don't know how the wording of that -- and maybe we need to set this one down for the time being to see if the staff can come up with wording that would be more appropriate to that, because I don't think we need more commissions upon commissions. We need somebody to take a serious look at the multistakeholder concept and get on with it. Maybe the parliamentary assistant would even agree, if Ms Witmer agreed to set it aside for now, to have it reworded in such a way that it could convey that.
Mr Hope: First of all, we talk about hog-tying the royal commission. This is exactly what it does, it puts a specific mandate to it. You're clearly only focusing on the workers' compensation and I know a number of groups out there, both employer and non-employer groups, workers out there, that are looking for a more universal system. You might see through the royal commission's report, the report might indicate -- and I use the word "might" -- the abolishment of the WCB and the establishment of a universal disability program in this province. We're already talking about federal government, provincial government, disentanglement, all that good stuff, and there are moneys that come from other governments.
But even stand this thing down -- I believe the royal commission ought to go out with a direction but not with a specific mandate, and allow the general public its opportunity to express a viewpoint on what it sees as a program to cover all citizens, whether they're employers or workers, in this province. You can stand it down if you want, but I won't be supporting it even if you bring it back because the royal commission has to have a lot of latitude to deal with a variety of feelings and input that will be out there. For us as a government to dictate very clearly in this legislation what they ought to be focusing on might not even be what the general public are asking for. So I won't be supporting the amendment even if you stand it down.
Ms Murdock: I have a question because I personally don't --
Interjections.
Ms Murdock: My father would never believe that I couldn't be heard over a crowd.
You see, I disagree with putting this in legislation, but having prefaced my remark with that, what would happen if one of the players refused to play? That was my question. Let's hypothetically presuppose here that it's legislatively put in and so now it becomes a legislative requirement. I think we would be hard pressed not to have a royal commission at this point, given the PLMAC and the announcement and so on. It would be very difficult. Having said that, what happens if one of the players, like one of the side players, says, "No, I'm not going to participate?" What do you do when it's a legislative requirement?
Mrs Witmer: Do you know what? Our intent here was twofold. Number one, we do not support the bipartism model of governance, and we wanted to make that abundantly clear. We do support the multistakeholder model and we also believe that given the lack of discussion concerning the composition of that board, we felt that one of the issues the royal commission needed to deal with was the composition of that board.
I would disagree, by the way, with Mr Hope. I believe it's absolutely essential when the royal commission is set up that it be given some very specific tasks and a mandate, because it's when you have an open-ended, nothing-type of mandate that you come up with nothing-type of solutions to problems. I think you need to identify what it is that you're going to go out and seek answers to and question people about and have discussions about. That was our real intention, to ensure that the government would indeed give serious consideration to the governance model that would incorporate a multistakeholder structure.
Mr Arnott: I wish I'd asked the Palmerston Chamber of Commerce what they thought about this amendment, but I didn't really get the chance to, unfortunately. I have a feeling they might have thought it was a good idea. I don't know. But I think it's a sensible amendment. Of course, as Mrs Witmer has indicated, it's meant to ensure that the government makes the commission, the terms of reference that are given to the commission, the enquiries, as wide ranging as possible.
We suspect that the government may specifically want the royal commission not to look into this issue because of a pre-conceived notion that the bipartite concept is sacrosanct. I think you want the royal commission to ask basic fundamental questions of the whole system. To me, the governance is one of the most basic, most important, most fundamental questions. That should be evaluated in a fair way through a royal commission process.
I think Mr Mahoney was trying to be helpful with his suggestions. Certainly our intent was that this would be coming through the actual royal commission process.
The Vice-Chair: Further discussion?
Mr Mahoney: Just to point out that if and when the royal commission ever surfaces, wherever it's hiding, and the Premier decides to actually formally do it, I'll be asking to present a document called Back to the Future which has on page 11 a complete outline of a non-partisan balanced approach with a multistakeholder board. I'd be happy to share that with all members of the committee if they want it.
The Vice-Chair: Further discussion?
Interjections.
The Vice-Chair: To facilitate, is there a wish to stand it down to get the wording corrected, or do we want to vote on this?
Interjections:
The Vice-Chair: Vote on this? All those in favour of the motion by Ms Witmer? Opposed? Defeated.
Interjections.
The Vice-Chair: Perhaps we should have a 10-minute recess until people calm down. This committee stands recessed for 10 minutes.
The committee recessed from 1523 to 1548.
The Vice-Chair: On section 3, a government motion.
Ms Murdock: I move that section 3 of the bill be struck out and the following substituted:
"3. The act is amended by adding the following section:
"Election where compensation payable outside Ontario
"9.1(1) If a worker or his or her dependants are entitled, in connection with an accident in Ontario, to compensation under this part and under the law of a country or place outside Ontario, they shall elect whether they will claim compensation under this part or under the law of that country or place.
"Notice of election
"(2) A worker or dependants who make an election shall give notice of it in accordance with subsection 9(2).
"Effect of failure to elect
"(3) If an election is not made and notice given, it shall be presumed that the worker or his or her dependants have elected not to claim compensation under this part."
A number of people came before us during the public hearings and explained that it was not clear whether the accident occurred here or whether it occurred in another part of the country or outside the country. This is clearly stating that this is covering accidents in Ontario. It's to prevent a worker or dependant from collecting workers' compensation benefits from two jurisdictions. I think it was agreed that there was some difficulty in reading that clearly, and this clarifies that.
Mrs Witmer: I can appreciate that there needs to be some sort of a statement made concerning the fact that compensation claims should be limited to only one jurisdiction, as this section is attempting to do. However, I also believe that there should be recourse for the recovery of payments made when a person is found to have collected them from two different jurisdictions. Have you considered that at all?
Ms Murdock: Well, under the existing legislation, a hearings officer decided -- and notice it wasn't even WCAT, Mr Mahoney -- it was that unusual case that was allowed, where they were receiving it from Quebec and Ontario, they were legal under the existing legislation. So it's pretty hard, when it's allowed, to go back and do that. But once this is in place, it would never occur, and if it did occur, then it would be contravening the law and you could collect, just as you can under Community and Social Services now.
Mrs Witmer: You say that you could collect, but is there any obligation on the part of the WCB to recover that payment, to ensure that any benefits that have been paid out that shouldn't have been could indeed be recovered?
Ms Murdock: Well, you may know this already, but the board has policy in place for overpayments, whenever they occur. I can certainly state on the record here for you today that the board can be advised that this is a concern and that their policy should include those kinds of overpayments in the future.
Mrs Witmer: But at the present time, there's obviously nothing on the books that would indicate that this indeed would happen. There's no penalty for the person who deliberately and knowingly does receive payment from two jurisdictions, and at the present time there is no obligation on WCB to recover the money that has been paid out.
Ms Murdock: Generally speaking, not just in relation to this alone, the board tries to collect its overpayments, if indeed it has overpaid. That would make sense. They're not out to lose money. I know there's been some difference on that, but certainly they will try and get back money that they have overpaid.
Secondly, I think too that there are interjurisdictional agreements whereby once election is made there is an onus for the board, of whichever jurisdiction, to notify the other board, and that they don't make a payment if an election has been made. In this instance, they will take this. So once election's made, then there will be notification to the other board that no payment is to be made, or vice versa, if they elect to be paid by Alberta instead of Ontario, and so on.
I think, right now under the existing legislation, the situation is why this whole thing was raised in the first place. Once this is in place, that won't occur. But should an overpayment occur, the board will go after it.
Mrs Witmer: However, there's no obligation upon the board to go after it.
Ms Murdock: Well, it is a corporation.
Mrs Witmer: There's nothing in the legislation that would make it mandatory that they would try to recover that payment.
Ms Murdock: No, I don't think so.
Mrs Witmer: So in essence, an individual can try to get away with this, and maybe be successful for a couple of months until they're caught. There's no penalty. The benefits might not even be recovered in the future.
Ms Murdock: Just to respond, there is nothing in the legislation that requires the board to go after overpayments, but there is policy direction by the board of directors to their staff to go after overpayments.
Mrs Witmer: I guess that's part of the problem that I have with the way Bill 165 has been written. The legislation is designed to be very intrusive as far as the employer community is concerned, and yet in this instance when an employee has been found to be doing something that is obviously wrong, illegal, there will be no penalty, there will be no punitive action taken at all, and yet in this legislation we are prepared to deal with employers in such a manner that they would be punished; not in this particular situation, but there are other examples in the bill where the legislation is very intrusive and does punish employers if supposedly they don't meet certain criteria.
Ms Murdock: I know which section you're talking about, but I would also point out that workers have been punished for years, long before this was even suggested for employers, in terms of return-to-work and rehab programs. Their benefits were cut off if they weren't cooperative, "cooperativeness" being determined by somebody at the board. So that punishment has always been there. But section 101 of the act, not the bill, says:
"It is the duty of the board at all times to maintain the accident fund so that with the reserves, exclusive of the special reserve, it will be sufficient to meet all the payments to be made out of the fund in respect of compensation as they become payable and so as not unduly or unfairly to burden the employers in any class in future years with payments that are to be made in those years in respect of accidents that have happened previously."
That, I think, would be any legislative requirement; in fact, that's what entitles them to go after overpayments in the first place, in any case. So this would be just added on as another instance of overpayment possibility.
Mrs Witmer: Possibility.
Ms Murdock: Well, if this works and notice of election is sent and everything else, then once it gets operating they shouldn't be paid from two jurisdictions. But this now states that you can't get money for the same accident out of two or more jurisdictions, period.
Mr Mahoney: There was a lot of concern about construction workers, who, as you know, are quite mobile. Say they're injured in Alberta, whatever, a back injury, and they go on compensation; a project comes up in Ontario. Are you saying that if they get a job in Ontario they would cease to collect their compensation benefits?
Ms Murdock: No.
Mr Mahoney: Only if they get a job in Ontario and are then -- is it the same injury or a second injury or an exacerbation of the same injury? Who's going to define all this?
Ms Murdock: Provisions for that are under the board already, but what this is saying is that if I was a construction worker in Alberta or Manitoba, we'll say, and I injured my arm or leg or back, whatever, and I have an injury, that the Alberta or Manitoba board would be responsible for payment of that injury that occurred there.
If I move to Ontario and I get another job with another contractor and I injure myself in Ontario, if it's a new injury, automatically that comes under Ontario workers' compensation. If it's exacerbation of a pre-existing condition and it happened with an Ontario firm, then you have your secondary injury enhancement fund to determine -- to the same part of the body, of course -- how that would work. But your total temporary benefits would be under Ontario law for being off work because of the injury that occurred in Ontario.
Mr Mahoney: How do we know in Ontario that someone's on some kind of a disability pension or is receiving compensation from British Columbia, for example?
Ms Murdock: When they make a claim to the board -- we're relying on people's honesty as well --
Mr Mahoney: But there's no way of knowing. The reality is that you could have a worker injured in Halifax or in Vancouver or in Winnipeg, come to Ontario, take a job -- I'm not trying to be too dramatic here -- get injured or reactivate the injury and apply to Ontario. There's no internetwork, shall we say.
Ms Murdock: Yes, there is. There are interjurisdictional agreements with all the boards across the country.
Mr Mahoney: Is there an information highway on it?
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Ms Murdock: There isn't an information highway on anything really yet, but there will be. The other thing is that when your medical comes in, in terms of whether or not there's been a pre-existing injury, I'm sure that would be in the records, and if there was any suspicion that there might be, then that's what you have people at the board to look into: whether or not it is a reinjury.
Mr Mahoney: If a worker were to be collecting from two or three different jurisdictions, which I think is very possible because there is not a mechanism in place to check that -- I'm not suggesting that a lot of workers would do that, but it's possible, and maybe the legal staff have got to answer that -- would that precipitate fraud charges as a result of this section?
Ms Murdock: Are you talking different accidents?
Mr Mahoney: Not necessarily; it could be a recurrence. It could be that they show up in Ontario, take a job for a short time and then the same injury recurs.
Ms Murdock: That's what I was saying earlier. I would presume that the medical evidence could possibly show that there was a pre-existing injury, and then you have investigative staff at the board if there was any suspicion. If there wasn't any suspicion, I would imagine they would just look at it as they would any other case that came in as a claim, and it wouldn't be until later, if they found out, that they would go back on it.
Mr Mahoney: Could it conceivably, hypothetically, lead to fraud charges if someone were --
Ms Murdock: Intentionally doing it? You'd have to show intent, wouldn't you?
Mr Mahoney: You'd have to show intent for a conviction.
Ms Murdock: If you couldn't show that they were doing it with the intention of fraud --
Mr Mahoney: I don't want to argue a hypothetical case. You're putting in place a section, an amendment, the intent of which I agree with. What I want to determine is that there's some enforceability in this thing and that it's not a huge loophole or opportunity for someone who's less than honest to find a way to collect from more than one jurisdiction.
Ms Murdock: I'll let Mitch Toker speak.
Mr Toker: I think we should try to clarify a point or two. It is quite conceivable that an individual could be receiving compensation from several jurisdictions at one time for different compensable injuries. It's quite possible that someone could have a compensable injury from a time they were working in Alberta, be collecting that, and have a different compensable injury while working in Ontario and have a legitimate workers' compensation claim in Ontario. I presume you're not asking questions with respect to that type of fact situation.
Mr Mahoney: I'm talking about potential fraud, Mitch, someone who wants to abuse the system. We hear a lot of stuff about that. I'm not convinced it's as widespread as the media and some folks perhaps try to make it out to be, but we have to be realistic and realize that if there's an opportunity for someone to gain out of something -- I don't want to create something that's going to open a door and create an opportunity for someone to be fraudulent or to abuse the system.
Mr Toker: This section would not impact at all the present policies and the present method the board uses to deal with and treat fraudulent claims. Conceivably, someone could try to make a claim to defraud our Workers' Compensation Board using injuries from another jurisdiction or conceivably that could be done by another method.
Mr Mahoney: Is there a time frame on the requirement for the worker to make an election?
Mr Toker: The worker would have to make an election before receiving benefits.
Mr Mahoney: But what I mean is, how long could it just go on sort of --
Ms Murdock: In limbo?
Mr Mahoney: Yes.
Ms Murdock: There are policies under the board already for delay in reporting an accident, so there is no time frame under this amendment. Specifically, the government motion does not include any time frame, but it is on the understanding that if you've had an accident, you're not going to wait around before you make a report.
Mr Mahoney: I'm thinking more in subsection (3) where it says, "If an election is not made and notice given, it shall be presumed that the worker or his or her dependants have elected not to claim compensation under this part." Is there a statute of limitations, if the worker claims under that section in five years' time?
Ms Murdock: When you look at the latency claims, the gold-dust miners and asbestosis cases and so on, they didn't show up for years. Then there's also the rule under the Workers' Compensation Act, and board policy covers this, that even if you don't make a claim at the board, you can put in a claim.
Mind you, you also have to explain and justify to the board why you didn't put it in at the time of the accident, but it's there already. I can speak personally to that.
Mr Mahoney: That's all I have.
Mr Offer: I have some questions on this. This is a very different section than now appears in the bill itself. Section 3 of the bill that you are repealing, dealing with section 8 of the act, is extremely different than what you are now inserting. This is not a small change. This is a very real and very different situation.
Ms Murdock: It's the exact same. Yes, in comparison to the section 3 that we're removing --
Mr Offer: I haven't asked the question.
Ms Murdock: Oh, sorry.
Mr Offer: Basically, under the section that you introduced just a few months ago, you are saying that no compensation is payable to a worker if they are receiving compensation under the law of another jurisdiction in respect of the accident. You are taking that out and saying that they are entitled to elect in the event of an accident. So what you are saying is, under the bill that you introduced just a few months ago, if there was an accident, the worker basically would be excluded from compensation in the province if they were receiving compensation from outside.
Ms Murdock: That's what we thought we were doing, but we had numerous groups come before us telling us that it was not clear. They were unsure of the use of the word "compensation" alone, because they thought it might apply to CPP and other kinds of benefits. So what we did in this amendment was we took the language directly out of the act that exists for payment of workers' compensation cases in foreign countries, which is section 9 of the act, and just used it verbatim, only we paragraphed it so it would be a little bit clearer. In section 9 it's all one paragraph, but we broke this one down into sections. Section 9 applies to accidents outside of Ontario; section 9.1 will now apply to accidents inside Ontario.
Mr Offer: Then why do we need this amendment if it's in the act already?
Ms Murdock: It isn't in the act already for accidents that occur in Ontario in terms of receiving compensation from more than one jurisdiction. That's why we put it in in the first place under what you were just reading earlier. According to those people who came before us during the public hearings and made presentations, they felt it was not clear.
So we're making it clearer. In the act, as you can see in your copy, it says, "Where compensation payable by law of foreign country, worker to elect." That is in a foreign place. Now this section is going to be where the accident occurs in Ontario.
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The reason I say that is because the board has been interpreting it -- and that's why we had to make it clear in this section, because if you look at the act itself and you look at section 8, it goes through and it's "outside Ontario," "outside Ontario," "outside Ontario," "outside Ontario," "business not in Ontario," "outside Ontario," and so on, on the side, the little comments, and when you get to section 9 the board has been interpreting that to mean "outside Ontario." They have not been interpreting it to mean "inside Ontario." So, section 9.1 will clarify that for board interpretation as well.
Mr Offer: If this amendment is passed we're going to be left with section 8, which is going to talk about a whole bunch of things, section 9, which is going to talk about a whole bunch of things, and section 9.1, which is going to talk about a whole bunch of things. I'm wondering if there isn't going to be some legislative interpretive overlap that is not going to be very helpful in the short or long run. That's not speaking against the substance of what you're trying to do. Legislatively, you've got 23 subsections in three sections of an act, all designed to try to accomplish the same thing. I just don't know if it's going to be terribly clear.
Ms Murdock: Under the existing legislation the decision was made on that one case whereby the woman is receiving moneys from two provinces for the same situation. That's under the way the legislation was interpreted today. This section will clarify that so that this interpretation can never be made again.
The Vice-Chair: Seeing no further discussion, on the government motion on section 3, all those in favour? Opposed? Carried.
Shall section 3, as amended, carry? Carried.
No amendments to section 4. Shall section 4 carry? Carried.
Section 5: We have a PC motion. Mrs Witmer.
Mrs Witmer: I move that section 5 of the bill be amended by adding the following subsection:
"(2) Section 35 of the act is amended by striking out `90 per cent' in each of the following places and substituting `85 per cent':
"1. The third line of subsection 35(4).
"2. The second-last line of subsection 35(6).
"3. The third-last line of subsection 35(11).
"4. The third-last line of subsection 35(13).
"5. The fifth and sixth lines of subsection 35(17).
"6. The eleventh line of subsection 35(17).
"7. The eighth line of subsection 35(18)."
Obviously, the substance of this motion, very briefly, is a reduction in benefit replacement levels from 90% to 85% of net average earnings. This would reduce the unfunded liability by $4.8 billion. It would still maintain the benefit levels in this province at a higher level than those in neighbouring jurisdictions. It would certainly help, as far as job creation is concerned, in making this province much more competitive, and certainly it would act as an incentive to those seeking to make investments here from abroad, from south of the border and certainly from our own people as well.
This also would address, of course, some of the overcompensation issues, because we know that at the present time there are some recipients who receive 90% of former earnings and really that's more than the net income they were receiving prior to getting WCB.
So that is the reason for this amendment, and I would hope all people would look favourably at reducing the compensation level to 85%.
Mr Noel Duignan (Halton North): Given the fact that the third party has moved a substantial cut in benefits to some of the most vulnerable people in our society and the fact that given some time to reflect on what they've done -- I'd like to move a 20-minute recess.
Mr Mahoney: Mr Chairman, if that's a motion, I'd like to speak to that motion.
The Vice-Chair: For a 20-minute recess?
Mr Duignan: Yes, I move a 20-minute recess.
The Vice-Chair: We have a motion on a 20-minute recess.
Mr Mahoney: I don't know what the game here is, but obviously there's been some decision by the government members that they either want to muzzle the opposition on some of these issues or stall this so that we don't get into the meat of the bill. I don't know what the problem is.
Mrs Joan M. Fawcett (Northumberland): It'll be deemed to have been passed.
Mr Mahoney: We just finished a 10-minute recess, which turned into a 20-minute recess.
Mr Hope: Because who was late?
Mr Mahoney: I don't care why; it did. And this one is a 20-minute recess that will turn into the rest of the afternoon. Frankly, if you want to adjourn the damn committee, let's go home. I got better things to do than play silly bugger games and recessing every once in a while. I really strongly object to that.
Probably one of the most critical issues in the whole bill is the benefit level, and while I strongly disagree with the amendment the Conservative Party has put forward, I strongly also support their right to put it forward, their right to have it debated, and my right as well as all members of this committee's right to speak out on this kind of an issue. You've got the majority, and if you want to recess this committee, I'll tell you, it's going to be a long time before this committee gets any kind of work accomplished around here.
Mr Arnott: I'm very disappointed in this motion put forward by the member for Halton North. As Mr Mahoney indicated just now, we just came back from a recess 20 minutes ago. I don't know why we had that recess, but we did. Now we're into a substantive issue that we want to put forward and the member opposite has indicated he needs time to reflect on it. Well, all of these motions were available to him on Monday, I think, and I hope he's had two days to reflect on it, maybe to read through them. I suppose he has had substantial time to reflect on those issues. So I'm totally against a recess at this point in time and I don't think we need one.
Mr Duignan: It wasn't a motion to adjourn, Mr Chairman. In fact, it was an idea for them to reflect on what they've done here. But I withdraw the request and we'll continue to 4:30.
The Vice-Chair: Okay. On the motion, Mr Mahoney.
Mr Mahoney: I think this is one of the areas where clear lines can be drawn about what parties in this place would do to effect change in the workers' compensation system. There are fundamentally two reasons that are put forward to reduce benefits. One is to attack the unfunded liability; the other is to take away what's seen as a disincentive to return to work. I would just like to briefly speak about each one of those.
First of all, with regard to the unfunded liability, I ask the simple question: If you had a debt of $20,000 and you were given 20 years in which to pay it, would you put $20,000 in a bank account today to cover that cost over the next 20 years? I think the answer is pretty obvious that, no, you wouldn't. There's no need to do that.
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Frankly, while I'm very concerned about the growth in the unfunded liability -- depending on who you want to believe, it's either $1 million a day or $2 million a day; either one is unacceptable. I'm very concerned about the status of that unfunded liability going down from the current 37%. I think we need a clear financial plan to move it up into 50%, 60%, 70% being funded. I think what happens is you get a little bit of the knee-jerk reaction, because the labour movement on the one side of this issue gets a lot of attention and gets very excited about benefit levels, understandably so, so the business community's got to counter it by getting excited about the unfunded liability.
But we really have to settle down the rhetoric on the unfunded liability. You cannot ignore it as some would have us do. You cannot simply say, "Well, because it's 5% better than it was 10 years ago, everything's okay." You can't do that because of the growth. You have to put in place some changes in this system to be able to responsibly deal with that unfunded liability. Should you do that by taking money away from the people who need it the most, the people who are recipients of the compensation?
In my outreach tour that I refer to from time to time I heard many, many CEOs of large corporations say to me, "We don't want anyone who's injured in our workplace to suffer." In fact, I had a group of them say, "Many of us top up the benefits to 100%."
Mr Hope: You'll be able to prove that, I guess.
Mr Mahoney: I can get you proof of that.
Mr Hope: You can't prove that statement.
Mr Mahoney: Well, I don't know what kind of proof you want, but if you're calling me a liar, why don't you do it? Because I heard them say it. They said it to me in my outreach. They didn't lie to me. The point is that they care, many of them. There are some who don't, and Mr Hope would love to point out on numerous occasions how the terrible corporate agenda is out to simply destroy workers, whether they're injured or not injured --
Mr Hope: Yes, right.
Mr Mahoney: Well, I know you believe that. That kind of intransigence, that kind of nonsense, is the type of thing we've got to get out of government in this province.
Mr Hope: It's fact, and I can prove mine.
Mr Mahoney: It certainly is not fact. The fact of the matter is that I believe all responsible employers would agree they do not want an injured worker, legitimately injured on their work site, to suffer.
I go back to the statements in the W5 program that got a lot of notoriety where I think on six or seven occasions they referred to 90% of income being the benefit level, and it's tax-free. They kept on referring to this tax-free stuff. How many people pay income taxes on their take-home pay? They've already done it. So that's more of the rhetoric. That's more of the extreme I guess what you'd call right side of this debate that goes hand in hand with the left extreme that we just heard from the member opposite about the corporate agenda. That's the kind of nonsense we've got to eliminate.
There's got to be some fairness and some balance put into this, because the object and the principal reason for a workers' compensation system is based on the fact that the workers gave up the right to sue the employer for an accident that occurred in the work site, and in return for that they would get fair compensation, they would get health care, they would get rehabilitation and they would get back to work. If we could just focus on that as the principle, as the basic fairness in a workers' compensation system, it's my submission that we would not want to see that injured worker receive less money. Their mortgage payments don't go down 10%, their car payments don't go down 10%, the tuition payments they have to pay to put the kids through school don't go down 10%, yet alone a further 5%.
The fairness and the justice in reforming this system by reducing benefits in my view is simply admitting that we don't know how to fix the system, so we're just going to carve it out and pay everybody less. Rather than getting at the systemic changes -- and this bill does none of that. This bill does nothing to fix a sick, broke and broken compensation system in the province of Ontario. That's why we've been opposed to this bill from day one. We see very little of a constructive nature in this bill.
To then take a bill like this and reduce benefits on top of that would be an absolute disgrace, because it does nothing to improve service delivery to injured workers. It does nothing to improve financial sustainability to the people who pay the bills, to the employers of this province. It does nothing for the people who have to deal in the system on a day-to-day basis, in many cases us.
I just think that thinking you can resolve the unfunded liability by doing this without attacking the number of claims that exist in our system in this province -- we're the mother of all workers' compensation systems right here in Ontario, from every aspect. We're the mother of all unfunded liabilities. We're the mother of all in the number of cases. We're the mother of all in the average cost of a file. We're the mother of all in the bureaucracy and the red tape and the length of time and the frustration.
Spend some time, as I know some of you have done, listening to the frustration of injured workers and employers together, and at the end of the day you find a tremendous amount of agreement between those two camps. You don't find the extreme rhetoric that we hear in this place and with motions like this and with comments like from the member opposite.
On the issue of flat-lining or overcompensation, even Gord Wilson agreed that no one injured on the job should benefit financially from that injury, and Gord agrees that we should establish a system that flat-lines benefits at not more than 90% of take-home pay. I'm not competent to do that. I'm not an actuarial expert, I'm not an accountant, and I try very hard in my job not to be what I'm not. But surely to goodness there is a computer program, there are experts who can determine how we can ensure that a worker is not being paid 92%, 98% or 115% of their pre-injury wage. No one can justify that. It does happen, and I admit that it happens.
We did have an agreement, I think, at the PLMAC process with Mr Wilson and all of the management crew in that process that they would agree to some kind of system that would flat-line it. It's related to taxation and it's related to the length of time that a worker is on compensation in relationship to the length of time that a worker is being paid a full wage for working. So we can make that kind of adjustment.
There is no need -- in fact, I would suggest to Ms Witmer that reducing benefits to 85% will not eliminate that on its own. There will still be problems of taxation. Instead of having the extreme cases where you get 115% of their pre-injury wage, they'll get 110%. Is that acceptable to the Tory party? I doubt it. So this does not resolve that problem. We have to find a way. We have to instruct the people who work in the compensation system or the people in the Provincial Auditor's: The government has to come up with a plan -- I would suggest the private sector could develop it for us -- that would either take a chunk off the last cheque or, however it would work, would flat-line out the payments that are made.
I want to talk just briefly about investment confidence as well. I don't think an investor looking to start up a business -- not just invest in some blue chip stocks or something; we're talking about someone who wants to start up a business. If I were looking at starting up a business, I would want to know, is there a worker compensation system in the jurisdiction which I am going into that will prevent the worker from getting injured and suing me and putting me out of business? Because that's what would happen. We've asked employers all over the province, would you like to go back to the tort system? Would you like to face an injured worker in a wheelchair, on crutches, missing a limb? Would you like to face a widow in a court of law? I mean, what did somebody get, $3 million or $7 million for spilling coffee in the States? We've seen some of the insane awards that have gone on in the court system, and anybody investing in starting a new business in any jurisdiction would have to be out of their mind to go into that system if there was not some kind of protection against those kinds of exorbitant judgements.
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So the question they should be asking is, "Is there a compensation system to which I can contribute a premium that will ensure that my investment is not destroyed or eroded because of a lawsuit?" If the answer is yes, then the next question is: "How does it work? Is it financially accountable and responsible? Is it fair?" Not, does it give them 85% benefits or 90% benefits? It's just not on. It's just not logical. It just does not follow any serious attempt to reform this system. If we put reforms in place that deal with methods to reduce the number of claims, methods to reduce accidents, methods to increase health and safety issues -- you can point at your watch if you want, but frankly I think this is the most important issue in this whole debate.
If we want to put in place systems that will correct the inequities and the problems and cure the malaise and the disease at the Workers' Compensation Board, I maintain there will not be any requirement from any party to reduce the benefit level.
I must tell you that I came to that conclusion from a little different perspective perhaps than some of the members of the government side. I didn't come to it from some ideological bias. I didn't come to it because I was a shop steward who felt I had to support a particular philosophical bent. In fact, when I went out on my outreach tour, I went out -- members of my caucus will tell you this -- with a view that I probably was going to recommend reducing benefits, that it probably was the way to go in the solution, one of the solutions. And I was absolutely convinced it was wrong. It was morally wrong. There was no justification to it. There were so many other things that need to be done in this system, that should be done -- very few, if any, of which we are doing in this particular situation.
Finally, I must comment -- I know I'm going on and I'm sorry, but I must comment on the second reason I believe Ms Witmer stated, and that is that we need to eliminate the disincentive to return to work. What we need to do is look at decisions that are made on return to work being made by qualified health care professionals. We've had many suggestions made to this committee, and it will be interesting to see if the committee is prepared to adopt some of the amendments we're putting forward in our caucus that will advance the involvement of health care professionals from all over the province in the system, and not leave it strictly up to the physicians. It will be interesting to see if they're prepared at some point to deal with expanding the responsibility of board members and of multistakeholders into the system of the Workers' Compensation Board.
If we have good quality decisions backed by good quality health care and by good quality advice, then we will be very clear what's needed to return workers to work. They have to work hand in hand with the employer, with the injured worker, with the health care professional and with the adjudicator at the WCB. I think that can be done, and that is a more humane, a more responsible way to deal with returning workers to work rather than simply saying: "Too bad you got hurt. We're going to slash your payments."
The Vice-Chair: Excuse me, Mr Mahoney. Will you be going on at length?
Mr Mahoney: I might. Why?
The Vice-Chair: We are past the scheduled time of adjournment. Would you like to continue having the floor the first thing tomorrow morning?
Mr Mahoney: I will probably do that, so I'll move adjournment if that's what you'd like.
Mr Hope: What's the speaker's list for tomorrow?
The Vice-Chair: Mahoney, Ferguson and Hope. This committee stands adjourned until 10 am tomorrow morning.
The committee adjourned at 1636.