CONTENTS
Wednesday 26 June 1991
Appointments review
William Flanagan
Vara Singh
Organization
Adjournment
STANDING COMMITTEE ON GOVERNMENT AGENCIES
Chair: Runciman, Robert W. (Leeds-Grenville PC)
Vice-Chair: McLean, Allan K. (Simcoe East PC)
Bradley, James J. (St. Catharines L)
Frankford, Robert (Scarborough East NDP)
Grandmaître, Bernard (Ottawa East L)
Haslam, Karen (Perth NDP)
Hayes, Pat (Essex-Kent NDP)
McGuinty, Dalton (Ottawa South L)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wiseman, Jim (Durham West NDP)
Substitutions:
Drainville, Dennis, (Victoria-Haliburton NDP) for Mr Silipo
Ward, Brad (Brantford NDP) Mr Wiseman
Clerk: Arnott, Douglas
Staff: Pond, David, Research Officer, Legislative Research Service
The committee met at 1012 in room 228.
APPOINTMENTS REVIEW
Resuming consideration of intended appointments.
WILLIAM FLANAGAN
The Chair: Our first witness is William Flanagan, who is an intended appointee as the part-time vice-chair of the Workers' Compensation Appeals Tribunal. Mr Flanagan, welcome to the committee. Would you like to make a few brief comments before we get into questions?
Mr Flanagan: We can proceed with the questions.
The Chair: Fine. You are a selection of the official opposition, so we will begin with Mr Grandmaître.
Mr Grandmaître: After our skits last night, I do not know if I should start or not. Lately, it is nice to be last.
Professor, good morning. Tell us about yourself. I read that you applied for this job on your own. You did not receive a phone call from the Premier's office or any civil servant but applied for this job on your own. Tell us about your interest in this job.
Mr Flanagan: I teach at Osgoode Hall Law School. I have an interest in administrative law. A colleague who teaches at the University of Toronto, who formerly served as a part-time vice-chair of the Workers' Compensation Appeals Tribunal, recommended the experience to me. It was on my own initiative that I wrote to the chair of the tribunal and put my name forth for his consideration.
Mr Grandmaître: But you did have an interest in workers' compensation?
Mr Flanagan: Yes.
Mr Grandmaître: What are those interests?
Mr Flanagan: I think it is two things. First, the Workers' Compensation Appeals Tribunal has developed a very interesting body of jurisprudence to govern its decisions. I think it is quite an important precedent, not only in Ontario but probably throughout the rest of the country. Second, I think the tribunal has developed a fairly novel approach to administrative decision-making, that is, a very non-adversarial approach to decision-making. I think that is a very interesting precedent. It is also something I personally would find very interesting to be involved in.
Mr McLean: There has been a lot of discussion around the Workers' Compensation Board for some time with regard to its claims procedure. Not only that, but there seem to be problems in communication with clients. Is that a concern of yours? Are you aware of it?
Mr Flanagan: I certainly am aware of it. I imagine it is something that, as members, you hear a lot about from your own constituents. As a part-time vice-chair, I would primarily be responsible for adjudicating claims that come before the appeals tribunal. I would not be involved in administrative decisions regarding the operation of the tribunal or the speed with which it hears cases or anything of that nature, so I do not know that those questions would directly relate to my responsibilities as a part-time vice-chair, but I am certainly aware of those issues.
Mr McLean: Do you not think, as part-time vice-chair, that it would be to the benefit of all that you make some recommendations to the chairman of the board?
Mr Flanagan: I would certainly think that appropriate, and I would like to think that my input would be considered.
Mr McLean: I wish you all the best and I hope you can have some positive input in trying to correct some of the problems there.
Mr Waters: In the relationship between WCAT and WCB, who should have the final say? I would really like to hear your opinion.
Mr Flanagan: That is a complex relationship. It is one that I expect I will become much more familiar with if my appointment proceeds. As the appeals tribunal is the final appeals tribunal, I expect WCAT would have the final say on questions of interpreting the statute and adjudicating the claims that come before it.
Mr Waters: Do you feel that once a person has gone through the appeal procedure and gone to WCAT, that should be the final and binding decision, that WCB should not be able to overrule a WCAT decision?
Mr Flanagan: I think there is a fairly developed way in which the two organizations communicate with one another to ensure that there is some continuity in decision-making and also input, both ways. I do not see the tribunal as dictating policy to WCB or anything of that nature. It should definitely be a co-operative process, although at the same time the appeals tribunal must retain the discretion to make its decisions as it sees fit.
Mr Waters: The second question I have is about stress. Do you feel it should be compensable, that it should be recognized as something that falls under --
Mr Flanagan: Work-related stress conditions. Again, there is undoubtedly a whole body of jurisprudence on this, and I cannot say I am familiar with it right now. However, if the stress were directly related to work conditions, I expect it would fall within the mandate of the Workers' Compensation Act.
Mr Waters: I probably ask questions I might regret, because I have had these things. I have tried to substantiate a stress claim a couple of times now, and the key has always been to prove it is job-related. Even when a doctor, a local physician, a series of doctors say it is job-related, the worker seems to have a problem getting that message through to the board. Do you see any way of breaking down these problems or setting up criteria so that both sides can live with it?
Mr Flanagan: I am afraid, in dealing with the specifics of that issue, I am a little beyond my depth at this point. But I would think it would be appropriate for the tribunal to develop guidelines relating to stress so that claimants before the tribunal would know what it is they have to meet in order to satisfy the criteria. That would certainly be appropriate.
1020
Mr Frankford: I notice you have quite an interest in AIDS.
Mr Flanagan: Yes.
Mr Frankford: There was a private member's bill or motion about classifying certain blood-borne diseases, including AIDS, as occupationally related. Perhaps this relates to Mr Waters's question. How much discretion does the WCAT have in setting new directions or how much do you have to get guidance? Does the industrial diseases classification panel come into this as well?
Mr Flanagan: There certainly is a risk of occupationally acquired HIV infection, particularly in health care settings. It has been documented in the United States. There are no cases yet that have been documented in Canada but it is possible, certainly, notwithstanding the practice of universal precautions in a health care setting. If you can establish that there has been a case of occupationally acquired HIV infection, I am sure that would fall within the mandate of the Workers' Compensation Act and would undoubtedly be compensable under that act. There is frequently a problem with causation, that is, determining if the infection was occupationally acquired or otherwise acquired, but providing that can be satisfied I am sure it would fall within the mandate.
Mr Frankford: I am not as familiar as I should be about which diseases can be presumed -- there is a presumption of relatedness, is there not?
Mr Flanagan: As I understand it, the proposed legislation would have enacted that presumption, that in fact the infection is occupationally acquired if certain health care workers acquire HIV infection. I do not believe there is a presumption currently that states, "If you are a health care worker, we will presume that this is an occupationally acquired HIV infection." I do not know whether that is advisable. I cannot really comment on that.
Mr Frankford: From the work you have done already, do you feel that is something which is needed?
Mr Flanagan: That there is a presumption, a legislative presumption? I would think probably not, but I certainly would think that in the case of doubt, the benefit of the doubt should rest with the claimant, undoubtedly.
Mr B. Ward: You have had a number of positions dealing with the law.
Mr Flanagan: Yes, that is correct.
Mr B. Ward: Have you had any experience in dealing with injured workers in particular?
Mr Flanagan: No, I have not.
Mr B. Ward: How did you come to express an interest in this particular appointment?
Mr Flanagan: I was very interested in the operations of this administrative tribunal, because from both an academic perspective and a legal perspective, it is a particularly interesting experiment in an alternative form of dispute resolution that is a non-adversarial model. I think it is extremely important that workers who come before the tribunal understand that the tribunal is not against them or contra their interest but rather it is a non-adversarial process that is designed to provide as quick and as fair a remedy to the worker as possible. I think that is very important. I think it is also something I would very much enjoy working with.
Mr B. Ward: You do not think your lack of experience in dealing with injured worker issues would be a hindrance to your appointment?
Mr Flanagan: It is true I have not had any direct experience dealing with injured workers' claims, although I have had considerable experience, as discussed earlier, dealing with HIV-related conditions, which also is a very important issue in the workplace. It is something I have done a lot of legal work on and also other work relating to that issue. I think I do have some familiarity with workplace issues, legal issues, personal issues, and I think some of that would be appropriate, but I cannot say I have had direct experience dealing with injured workers.
Mr B. Ward: I think the issue of workers' compensation has been in the media for some time now. We are all aware of the problems that have occurred in that particular bureaucracy. Do you have any views on the workers' compensation system in Ontario?
Mr Flanagan: As you know, when the system was enacted it meant that workers could no longer sue in court for remedies for occupationally acquired illness or disability. Given that right has been removed from workers, it is very important that the workers' compensation scheme operate in an effective and a fair way to ensure that claims are adjudicated as quickly and as fairly as possible. I think that is an obligation the government has assumed in enacting this scheme and removing the right to sue before the courts. I think it is a very important obligation, one a great deal of attention should be paid to in making sure these claims are adjudicated in a fair and effective manner. I do not know that we have achieved that yet, but to the extent in which I might have an opportunity to participate, that would be my objective.
Mr Grandmaître: As you know, lately the WCB and the tribunal have been faced with some difficult decisions concerning people suffering from stress and burnout. Do you think the WCB should have the medical responsibility of declaring people as burnouts or suffering from stress? How can you people, not being medical doctors -- these people can be represented by medical people. How do you feel about compensating people who have burnout or stress?
Mr Flanagan: I am not directly familiar with these cases, but I suspect that causation issues are very difficult to ascertain with respect to stress, stress undoubtedly being caused by a multitude of factors, some work-related, some not. Conditions that can be traced to work-related stress should likely fall within the mandate of the Workers' Compensation Act, but I am sensitive to the fact that it must be difficult to adjudicate those claims in that the causation factors are very complex.
Mr Grandmaître: Do you think you should be dealing with those types of cases?
Mr Flanagan: If the stress is work-related, if it is related to a condition in the workplace, I think it is appropriate to consider these claims.
Mr Grandmaître: But do you not think everybody is suffering right now, especially us, from stress?
Interjections.
Mr Grandmaître: I am just working myself up to appear before you.
Mr Flanagan: I wish you every success.
Mr Grandmaître: Do you think you should add that responsibility or should it be left out completely and decided by a medical panel or whatever?
Mr Flanagan: I would not be comfortable with singling out a particular disability such as a stress-related condition and saying that, because the causation issues are so complex, it should no longer be dealt with under the mandate of compensation. The issue is difficult and, as you say, everyone suffers a certain amount of stress in any workplace. But I expect there are some particularly unique conditions that cause certain workplace-related stress that ought to be considered; again with the qualifier that I am not familiar specifically with the jurisprudence on the question. I must make that clear, that I am not exactly sure what the current policy is.
The Chair: Thank you, Mr Flanagan. We appreciate your appearance here today. We will, I suspect, be making a decision with respect to your appointment and Dr Singh's later this morning and you will be advised.
Mr Flanagan: Thank you very much.
1030
VARA SINGH
The Chair: The next intended appointee is Dr Vara P. Singh. Welcome to the committee. Would you like to make a brief comment before we get into questions?
Dr Singh: No, I will start at questions.
The Chair: Okay. Again, you were selected for review by the official opposition so we will start with Mr Grandmaître.
Mr Grandmaître: What are your thoughts on being the final judge or one of the final judges in declaring workers to be suffering from stress or burnout?
Dr Singh: First, I am not a medical doctor. I want to be clear on that. People do have burnout and stress on the job, but when you say it is work-related, the causation of that stress and burnout is important to ascertain. I do not think just a medical report itself would give you the answer. There is a battery of tests also available to ascertain the cause of stress and anxiety and so on.
Mr Grandmaître: Do you not think that everybody is suffering from stress today, in the workplace or it could be stress from your family, your friends or whatever? I find it very difficult to say this stress was caused by the work you are involved in. Maybe it all started five years ago with a divorce or a separation and all of these troubles have accumulated and you have reached the point where you cannot concentrate on the work you are doing, and it is going to be called workplace stress or burnout. I am not questioning your qualifications, but I find it very difficult to see how, not being a medical doctor, you can pass judgement or reach a verdict on such difficult cases.
Dr Singh: I agree with you that there are layers and layers, intertwined layers of reasons for these situations. It is indeed very difficult to assess the origin, if there is such a thing as an origin in these areas. There are a lot of grey areas as well.
When we make our decision it depends on the way we are able to communicate with the workers involved and to deal with some of their concerns and what it relates to. It is undoubtedly a grey area, but it takes a lot of caution, to take the whole person, to be able to assess that situation.
Mr Grandmaître: I see that you did not receive a phone call from anybody in the civil service. You applied for this nomination on your own. Why did you do it?
Dr Singh: I have been in the health field for over 20 years. At the same time, I have been very active in the community. I have had exposure to people who have been impaired or injured in the workplace. I have had patients who had to go on kidney dialysis because of chemical situations at the workplace, and back pain and so on. Also, I have quite a rich adjudication experience and I was interested in the tribunal's work. Therefore, I took the initiative of contacting the tribunal myself.
Mr McLean: Following the last question, how did you know this position was open?
Dr Singh: I did not know. I just called to express my interest.
Mr McLean: Who did you call?
Dr Singh: I called the secretary of the tribunal and said I would be interested in knowing more about the tribunal and would like to meet with the chairman if it was possible.
Mr McLean: How did you know who the secretary of the tribunal was?
Dr Singh: I called and said I wanted to speak to the secretary or the chairman.
Mr McLean: Are you presently working?
Dr Singh: No.
Mr McLean: From 1988 to 1990 you were involved with the Immigration Records Board of Canada. Why are you not involved in that today?
Dr Singh: I finished my term on the board.
Mr McLean: Was it a federal appointment?
Dr Singh: Yes.
Mr McLean: I am curious about the experience you would have dealing with tribunals with regard to the WCB. Have you had any experience with the WCB?
Dr Singh: No.
Mr McLean: None at all. Do you know the chairman of the board?
Dr Singh: No.
Mr McLean: You should fit in well in making a decision based on facts. I wish you well.
Mr Waters: We all love stress. I could change things around a bit on this one. Do you feel the family physician's diagnosis should be regarded with a higher degree of credibility when it comes to cases such as stress? The reason I ask is that in cases I have been involved with, the only person I could possibly see who could really say, "This is an external problem, from your home life or whatever, outside of work," or "This is from work," seems to be your first medical contact. I am wondering what your opinion would be.
Dr Singh: It is a very sensitive question. If you see a family physician -- you said family physician?
Mr Waters: Yes, the local doctor. All of a sudden, for whatever reason, you have a stress problem. It is not like having your hand caught in a piece of machinery and it is gone; it takes a period of time. I just wondered whether you felt that doctor's testimony should be held in a higher regard than, let's say, a doctor whom the employer has had you see somewhere down the road.
Dr Singh: There are two ways of looking at it. A family physician would obviously know the patient who comes to him over a number of years or months or whatever, so he or she will have an idea of the emotional, mental and physical status of the person concerned. If he came and referred to a problem such as "stress," in very global terms, the physician probably would assess the problem from the knowledge he has of the person. If there were something which was untoward, as a family physician he would naturally refer the person to somebody else. I would assume the person would be referred to a specialist at the extreme end. By virtue of the fact that the person is a specialist, I think he would have the knowledge and experience to assess the person fairly to some extent.
Mr Waters: My question was basically that the specialist may not know. The specialist might say, "Yes, it's stress," but it would be the family physician who in my personal opinion would know where the stress came from. He is the day-to-day person.
The other question is the same as I asked the last person, because I find it difficult sometimes. When somebody appears before WCAT, should that be the final decision or should the WCB board of directors or whatever have the right to overturn that decision? In your opinion, where should it end?
Dr Singh: As I understand, the workers and employers who are not happy with the decision of the WCB appeal to WCAT.
Mr Waters: Yes, but -- and they say it much better than I do -- somewhere in here it actually says, "The principal question in the interpretation of subsection 86(n) is whether a decision of the WCB board of directors to reverse a WCAT decision is binding on WCAT." I would like your opinion on that. Does the board of directors have the right to overrule a WCAT decision?
Dr Singh: That falls into a policy area and I would not take the liberty of answering that question at this point.
1040
Mr B. Ward: You said you had some experience with injured workers; could you elaborate on that in a little more detail?
Dr Singh: I was working in the health area. I will not mention any places where I worked, but it would probably be in the résumé anyway. In the course of my work, I have had patients who have been injured or impaired in the workplace and have had to go on dialysis. I knew a few of them who did that, who had to go on dialysis and had to go through the whole process of disability pension and so on and so forth, people working in different workplaces. I had direct contact with them in understanding their feelings about certain situations and some of the difficulties they had in going through that process. That is why I am familiar with that area.
Mr B. Ward: Do you have any particular views on how the existing workers' compensation is structured? I know it has been in the media.
Dr Singh: Again, not having worked there and just being exposed to it or reading the materials which are available to the public, I could not honestly give you an answer to that.
Mr B. Ward: You do not have any particular views at this time? You do not know enough about it?
Dr Singh: Not the facts, no.
Mr B. Ward: So you have some experience with injured workers but you do not feel you have enough information about workers' comp to have a point of view.
If you are appointed to this position, what benefits do you feel your particular personality would bring to the WCAT proceedings?
Dr Singh: I think because of the background and experience I have had -- as a vice-chair, first of all, I would be chairing the meeting. It is very important to have an environment where a person can relax. When we say non-adversarial we really mean non-adversarial, because people get intimidated very easily; and when they have a problem they feel more intimidated. When you have good communication and listening skills and are able to interface with the person to make him feel comfortable, that, I feel, is going a long way towards being able to assess the situation.
Mr B. Ward: That is a benefit that you feel you could bring to enhance that type of environment?
Dr Singh: Yes.
Mr Frankford: I am interested in the position you had from 1980-88 at Sunnybrook. Could you tell us what your role was?
Dr Singh: I was educational co-ordinator there, promoting programs of benefit to the patients. We call them patients not clients in a hospital setting. I did quite a lot of intensive counselling work with patients. I had done my thesis on chronic care patients and most of them were dialysis patients. That is why I am quite familiar with the dialysis situation -- family and so forth, the whole thing was involved in relation to the disease.
Mr Frankford: So you were dealing mostly with patients, not with staff? Or were you co-ordinating and advocating for both?
Dr Singh: Staff as well, because I had to run educational programs for the staff to understand the patients, as well as programs for the families to understand a sick patient, for spouses to be able to understand the process, and for the employer-employee situation as well as families. I had to prepare a lot of packages to do that.
Mr Frankford: Before that you were with the Addiction Research Foundation. Getting on to stress, would you say that a proportion of the cases you saw were stress- and work-related?
Dr Singh: When you talk about alcoholics, I suppose -- well, I will not zero in on one area. It is a very complex situation in a person's life. What aspect of a heavier weight at a given time could induce it? It could be a family problem, it could be a parent-child problem, it could be a work problem or it could be a combination of all three. To zero in on any one aspect would not be fair. You have to look, again, at the total person to be able to help the person. I am glad to say that I have been successful in helping some people make a good life for themselves.
Mr Frankford: I particularly wanted to seek correlations between certain occupations and alcoholism.
Dr Singh: To be honest with you, I did not look at it at that time from this perspective. I did not look into the correlation of work as related to alcohol.
The Chair: You have exhausted your time, but since Mr Hayes was obviously generous with me, I am going to give him a quick question.
Mr Hayes: This was touched on before, the situation where the Workers' Compensation Board would turn down a claim even though the worker specialist and the medical department of the corporation, for example, supported the person's claim.
How would you deal with this situation as a member of WCAT? For example, I dealt with a case a few years back of a person who had asbestosis. The corporation knew that, yes, that person was exposed to asbestos over a certain period of time and the medical people supported this person's claim, yet the Workers' Compensation Board turned it down.
How would you deal with a situation like that? Would you have to get another independent expert?
Dr Singh: Again, I am new at this thing and I do not know the workings of the tribunal, but as I understand it, the tribunal has to go by the provisions of the compensation act. I am sure such a case would be included in the act, and whatever the act provides, one could pursue it and look for other sources supporting that evidence to be able to come to a decision.
The Chair: Thank you very much, Dr Singh. We appreciate your appearance. As I said, hopefully we will be making a decision on your appointment later this morning, and the clerk or someone in the Premier's office will advise you.
At this stage, I would like to ask for unanimous consent to deal with concurrences. We are not going to be meeting for some time. Do we have unanimous consent?
Agreed to.
The Chair: We will require motions with respect to each individual appointment. Do we have a motion to concur with the appointment of Mr Flanagan? Moved by Mr Waters. Any discussion?
All in favour? Opposed?
Motion agreed to.
The Chair: May I have a motion in respect to concurring in the appointment of Dr Singh? Moved by Mr Hayes. Any discussion?
All in favour? Opposed?
Motion agreed to.
1050
ORGANIZATION
The Chair: The next matter on our agenda is a discussion of the schedule of business. Your House leaders have probably advised you that the week of 6 August has been assigned to the committee for sitting days. August 5 is the civic holiday, so we could be looking at sitting the afternoon of 6 August, and possibly 7, 8 and 9 August. I am not sure what the clerk is looking for with respect to this, because this is usually a matter that is left to the subcommittee.
Mrs Haslam: Will we be dealing with agencies, boards and commissions during that period?
The Chair: That was my hope, and certainly members of the subcommittee were asked to come today with one agency, board or commission. Hopefully we would be looking at the afternoon of 6 August to deal with the Ontario Municipal Board, which we did not complete. We have four witnesses who wish to appear before us. We could do that on the afternoon of 6 August. On 7, 8 and 9 August, we could deal with agencies selected by each party. That would be my hope. Do we have any disagreement with that approach?
Mrs Haslam: Since the gentleman who was here previously is not here, I just want to be sure that the goat red meat committee, which he seemed most interested in, was one of the suggestions.
The Chair: I think he has another one. It takes priority.
Mrs Haslam: I just wanted to protect his interest. That is one he first mentioned, the goat red meat committee.
The Chair: I guess that is it. We are going to have a quick subcommittee meeting following this and hopefully every subcommittee member has his or her selection for us. We will plan on dealing with agencies in that week.
The committee adjourned at 1051.