[37] Bill 106 Original (PDF)
Bill 106
Bill 1062000
An Act, in recognition
of Lynn Henderson, to amend
the Workplace Safety
and Insurance Act, 1997,
in order to provide for
compensation for secondary victims
of occupational disease
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1.The Workplace Safety and Insurance Act, 1997 is amended by adding the following sections:
Secondary victims of occupational diseases, home exposure
15.1 (1)This section applies if a person suffers from and is impaired by an occupational disease that occurs due to the nature of an employment engaged in by a worker with whom the person lived.
Applicant deemed to be a worker
(2)A person who makes an application for benefits under this section shall be deemed to be a worker to whom this Act applies.
Entitlement to benefits
(3)The person and his or her survivors are entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.
Presumed causation
(4)The person's disease is presumed to have occurred due to the nature of the worker's employment, unless the contrary is shown, if the person and the worker lived together at some time before the date of the impairment, the worker was engaged in the relevant employment during all or part of the time that they lived together, and one of the following conditions is also satisfied:
1.The worker contracts an occupational disease due to the nature of his or her employment and the person who resides with the worker contracts the same disease.
2.The worker was employed in a process set out in Schedule 3 or 4, and the person who resides with the worker contracts a disease specified in Schedule 3 or 4, as the case may be.
Deemed causation, mesothelioma
(5)A primary neoplasm of the mesothelium of the pleura or peritoneum suffered by the person is deemed to have occurred due to the nature of the worker's employment if the person and the worker lived together at some time before the date of the impairment and, during all or part of the time that they lived together, the worker was exposed to airborne asbestos fibres in his or her employment.
Application of s. 15 (5) and (6)
(6)Subsections 15 (5) and (6) apply, with necessary modifications, to applications for benefits under this section.
Special rules re employers
(7)The following rules apply for the purposes of this section:
1.The worker's employer shall be deemed also to be the employer of the person who resided with the worker.
2.The Board may declare that a Schedule 1 employer is liable with respect to the person as if the employer were a Schedule 2 employer. However, the employer continues to be a Schedule 1 employer for the purposes of sections 28, 29, 30, 84 and 94.
3.A declaration under paragraph 2 may be restricted to an industry, a part of an industry or a department of work or service engaged in by the employer.
4.Compliance with sections 25, 40 and 41 remains the responsibility of the person's actual employer, if any, but in that case the cost of compliance shall be paid by the deemed employer. If the deemed employer fails to do so within a reasonable time, the Board shall pay the costs of compliance to the person's actual employer and is entitled to recover them from the deemed employer.
Special rules re calculating benefits
(8)The following rules apply for the purpose of calculating benefits under the insurance plan in an application under this section:
1.The person's average earnings are his or her average earnings in his or her actual employment, the average earnings of the worker with whom the person resided, or the average earnings of a full-time worker earning the average industrial wage for Ontario in the year of the person's impairment, whichever is greater.
2.The average earnings of the worker, for the purpose of paragraph 1, shall be determined in the way that most fairly represents his or her earnings during the period that he or she was engaged in the relevant employment and resided with the person. If those earnings are not known, the Board shall determine the amount with reference to,
i.the worker's earnings during any later period of employment with the same employer,
ii.if information under subparagraph i is not available, the earnings of another worker employed at the same work by the same employer during the relevant period,
iii.if information under subparagraphs i and ii is not available, the earnings of a worker employed in the same grade in the same class of employment in Ontario during the relevant period, or during any period for which information is available.
Application, time of exposure
(9)This section applies with respect to a person and his or her survivors if the person and the worker lived together while the worker was engaged in the relevant employment at any time on or after January 1, 1950.
Mesothelioma, community exposure
15.2 (1)This section applies if the following conditions are met:
1.A person contracts a primary neoplasm of the mesothelium of the pleura or peritoneum.
2.The person was exposed to airborne asbestos fibres generated by a workplace in Ontario.
3.The exposure did not take place in the person's own employment or in the manner described in subsection 15.1 (5).
Deemed causation and deemed employer
(2)The person is deemed to be a worker under this Act, the disease is deemed to have occurred due to the nature of the employment and the employer in whose workplace the airborne asbestos fibres were generated is deemed to be the person's employer.
Application of s. 15.1 (3) and (7)
(3)Subsection 15.1 (3) and paragraphs 2, 3 and 4 of subsection 15.1 (7) apply to the person, with necessary modifications.
Special rules re calculating benefits
(4)For the purpose of calculating benefits under the insurance plan in an application under this section, the person's average earnings are the greatest of the following:
1.The person's average earnings in his or her actual employment.
2.The average earnings of all full-time workers in the workplace where the airborne asbestos fibres were generated in the year of the person's impairment.
3.The average earnings of a full-time worker earning the average industrial wage for Ontario in the year of the person's impairment.
Multiple employers
(5)If there is more than one deemed employer under subsection (2),
(a)they shall share financial responsibility equally; and
(b)earnings for the purposes of paragraph 2 of subsection (4) shall be an average of earnings in all the workplaces.
Application, time of exposure
(6)This section applies with respect to a person and his or her survivors if the person's exposure to airborne asbestos fibres occurred on or after January 1, 1950.
Study re residents of Lambton County
15.3 (1)The Board shall carry out a study of residents and former residents of the County of Lambton to identify potential claimants under subsection 15.1 (5) and section 15.2.
Time frame, report
(2)The Board shall begin the study on or before the first anniversary of the day Lynn Henderson's Law (Workplace Safety and Insurance Amendment), 2000 comes into force and shall submit a report of the completed study, including the Board's recommendations, to the Speaker of the Legislative Assembly on or before the fifth anniversary of that day.
Monitoring system
15.4 On or before the fifth anniversary of the day Lynn Henderson's Law (Workplace Safety and Insurance Amendment), 2000 comes into force, the Board shall establish and implement a system to identify potential claimants under sections 15.1 and 15.2.
Commencement
2.This Act comes into force on the day it receives Royal Assent.
Short title
3.The short title of this Act is Lynn Henderson's Law (Workplace Safety and Insurance Amendment), 2000.
EXPLANATORY NOTE
The Bill amends the Workplace Safety and Insurance Act, 1997 to provide no-fault benefits for secondary victims - persons who contract occupational diseases that are not caused by their own employment but by the employment of other persons who live with them. No-fault benefits are also provided for persons who contract mesothelioma as a result of exposure to airborne asbestos fibres in the community.