ELECTION OF CHAIR AND VICE-CHAIR
CONTENTS
Wednesday 2 November 1994
Election of Chair and Vice-Chair
Committee business
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: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Wood, Len (Cochrane North/-Nord ND)
Conway, Sean G. (Renfrew North/-Nord L)
*Fawcett, Joan M. (Northumberland L)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
*Martel, Shelley, (Sudbury East/-Est ND)
Mills, Gordon (Durham East/-Est ND)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
*Waters, Daniel (Muskoka-Georgian Bay ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Arnott, Ted (Wellington PC) for Mr Turnbull
Carr, Gary (Oakville South/-Sud PC) for Mr Jordan
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND) for Mr Mills
Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway
Also taking part / Autres participants et participantes:
Ministry of Labour:
Murdock, Sharon, parliamentary assistant to the minister
Toker, Mitchell, manager, workers' compensation board
Clerk / Greffière: Manikel, Tannis
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1621 in committee room 1.
ELECTION OF CHAIR AND VICE-CHAIR
Clerk of the Committee (Ms Tannis Manikel): As you're aware, Bob Huget is no longer a member of this committee, so we need to elect a new Chair.
Ms Shelley Martel (Sudbury East): I would nominate Mike Cooper for Chair.
Clerk of the Committee: Are there any further nominations? Seeing none, I declare the nominations closed and Mr Cooper elected as Chair.
The Chair (Mr Mike Cooper): I want to thank the committee members for their support. At this time, we'd like to elect a Vice-Chair.
Mr Paul Klopp (Huron): I'd like to nominate Len Wood.
The Chair: Further nominations? Seeing no further nominations, Mr Wood, will you stand for the position?
Mr Len Wood (Cochrane North): Yes.
The Chair: Mr Wood will be the Vice-Chair.
Now we can get this committee back to work.
COMMITTEE BUSINESS
Mr Daniel Waters (Muskoka-Georgian Bay): I move that a subcommittee on committee business be appointed to meet from time to time, at the call of the Chair or at the request of any member thereof, to consider and report to the committee on the business of the committee; that substitution be permitted on the subcommittee; that the presence of all members of the subcommittee is necessary to constitute a meeting; and that the subcommittee be composed of the following members: Mr Cooper, Mr Wood, Mr Offer, Mr Turnbull, and that any member may designate a substitute member on the subcommittee who is of the same recognized party.
The Chair: Discussion on the motion? All those in favour? Opposed? Carried.
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 Chair: For the committee members, there are two new motions before you. One is MS-4, a government motion, and that's to replace the one that was stood down in section 7, motion number 14. Ms Murdock, are you withdrawing the one that was stood down?
Ms Sharon Murdock (Sudbury): Yes, and replacing it with this. There is only a minor change in subsection (6.1) for clarification purposes, to match with other parts of the bill. But as we stood it down, can we deal with it --
The Chair: We'll take care of that when we go back to section 7.
Ms Murdock: That's what I was going to suggest.
The Chair: We also have a new Liberal motion which will go before number 19 in your books, numbered 19A.
We finished at the end of section 8, and that section was carried, as amended. Now we'll be going to section 9 and the Liberal motion.
Mrs Joan M. Fawcett (Northumberland): I move that section 9 of the bill be amended by adding the following subsection:
"(1.1) Subsection 53(2) of the act is repealed and the following substituted:
"Early assessment
"(2) Within 45 days after notice of an accident under section 22 is filed, the board shall assign a vocational rehabilitation adjudicator for a worker who has not returned to work. The adjudicator shall promptly contact the worker for the purpose of identifying the worker's need for vocational rehabilitation services."
I further move that subsection 53(2.1) of the Workers' Compensation Act, as set out in subsection 9(2) of the bill, be amended by striking out "Promptly after contacting the worker" in the first and second lines and substituting "Promptly after the worker is contacted."
I bring this to everyone's attention because we all know that the main object is to get injured workers back to work -- we all want that to happen -- and we know too that the vast majority of the workers want to get back to work. In many cases, however, a worker who has been injured believes they will be able to return to their original job, and they go through all their recuperative measures, whether it be in hospital or recuperating at home, with the real notion that they will eventually get back to their original job, but sometimes this doesn't happen.
As has been pointed out to me on many, many occasions, because the worker has not designated in the beginning that they would eventually like vocational rehabilitation, their file can be closed. This has happened to many. They really believe they can get vocational rehabilitation, but when they go back to apply, they are told their file has been closed and then everything is delayed, they have to re-establish, and many of them are very, very frustrated around this.
It was a thought that we could put in the act that 45 days after notice of an accident, when the board assigns and they come back, that it isn't just any adjudicator but it is a voc rehab adjudicator who would review this injured worker's case so voc rehab can start immediately and the injured worker can get back into the workforce as soon as possible.
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This has been pointed out to me and I just bring it to your attention. I hope you will agree that it's a minor change, just ensuring that an injured worker will be dealt with by a vocational rehabilitation adjudicator if 45 days have passed and it looks like they are not going to be able to go back to their original job. Some workers have gone back to work, tried it and found out they can't. Once they go back to work their file is closed, and it really becomes a mess.
Mr Gary Carr (Oakville South): I have a question on the timing, the 45 days, where that came from.
Mrs Fawcett: That comes from the act itself, I believe. Yes, it's in the act.
Ms Murdock: As to subsection 53(2) of the current act, you've made your point about it having been designated, but I have some difficulties with the concept of designating a rehab adjudicator when the board's administrative and operational methods would be infringed upon in terms of having it be designated. The act under subsection 53(2) and the new provision we're going to be adding to it where the board contacts the employer following the call to the worker and arranges the kind of voc rehab the worker needs we think would cover it, and we would not want to get into the operational side of designating who specifically would call. So I would not be in favour of the first part.
The second part of your motion -- well, obviously, if we don't support the first one --
Mrs Fawcett: It follows, if the first one is passed.
Ms Murdock: Actually, I don't see how it follows because I don't see any difference. Maybe you could explain "promptly after contacting the worker" being changed to "promptly after the worker is contacted."
Mrs Fawcett: I think it was just to facilitate the English of it all.
Ms Murdock: I wondered.
Mrs Fawcett: I understand what you're saying but, unfortunately, that isn't what happens in real life. For some reason, sometimes adjudicators who are not vocational rehabilitation adjudicators don't see the necessity of a person being reassessed and going forward, so these people do get lost, and many of them do, because their file has been closed. They thought they were able to go back to work, they did in fact go back to work and then couldn't cope. Then they really do get lost in the shuffle. All I'm saying here is that when they come back into the system, it be a vocational rehab adjudicator who looks at and assesses the fact that they cannot do their present job.
Mr Ted Arnott (Wellington): I can support the intent of what Mrs Fawcett is proposing. I just want to ask the parliamentary assistant and perhaps her staff to answer a question. Does she perceive that this will increase the cost of administration at the board if this amendment is adopted?
Ms Murdock: That's what I was going to explain to Mrs Fawcett. When a claim gets to the voc rehab level, when the worker is eligible for vocational rehabilitation, your claims adjudicator passes it on. If the file is closed, yes, a claims adjudicator would be the one who would contact you, but if it is seen at that level, and it would be determined at the claims level if the file has been closed, then it would be passed on to the appropriate worker, and if voc rehab was the one, it would go the voc rehab worker.
I know only too well, having advocated on behalf of injured workers for four years, that it doesn't work all the time and that the deeming of being uncooperative closes a file and then it goes back to claims and so on and starts all over again. But your provision would not change that.
Mrs Fawcett: If a worker believes they can go back to work and they go back to their original job, does that close the file?
Ms Murdock: Goes back to their original job? If they go back to their original job, they're no longer on voc rehab, they're no longer on a worker's compensation claim, unless they reinjure themselves; then it's a new injury, or a reinjury.
Mrs Fawcett: But when they go back, in three or four weeks they find they can't do that job, so they need to be retrained. But the file has already been closed, so it does not get sent to a vocational --
Ms Murdock: You're right. They'd have to call and have it reopened, and when it was reopened and determined that they were at voc rehab level, they would go back into the voc rehab section of the board. That's the way it's supposed to work now.
Mrs Fawcett: I know, and it doesn't.
Ms Murdock: But your provision won't change that. If you have a closed file, regardless of the reason, and you call the board because you can no longer do your original job, it will go into claims first, because the file has to be reopened before it then goes to the appropriate department.
Mrs Fawcett: What I'm saying is that when they go back after the 45 days, it goes to a voc rehab person who knows something about what can happen to someone who has been injured and is not able to carry on that job and needs retraining. I'm saying that sometimes some of the people on the front who make the initial contact don't realize.
Ms Murdock: But if you have an injury, after 45 days of your being off, you're going to get called for an assessment in terms of your voc rehab possibilities or whatever your assessment will be. This does not address the concerns of someone who goes back and finds they can't do the job and then comes back to WCB. Do you know what I'm saying?
Mrs Fawcett: I do, but I'm just wondering --
Ms Murdock: Yours won't resolve it either.
Mrs Fawcett: Then we'd better get something that will resolve it.
Ms Murdock: We have to get fewer workers injured in the province and then we won't have to worry about voc rehab.
Mrs Fawcett: Meanwhile --
The Chair: Seeing no further discussion, all those in favour of the Liberal motion? Opposed? Defeated.
Mr Steven W. Mahoney (Mississauga West): Could I ask for clarification on government motion MS-4, which deals with the private vocational schools and the trainees? I particularly want to ask some questions of the parliamentary assistant and the staff around this, because it has to do with the setting of rates for these unpaid trainees.
I think there was all-party agreement on the amendment; that was not a problem. But there's something that has been missed. The amendment states, "The placement host shall be deemed, for the purposes of this act...not to be an employer of the trainee," so they don't have to take on the liability and the rates are then not set based on that employer's rate or wage level. It says, "The training agency shall be deemed, for the purposes of this act...to be an employer of the trainee and the trainee shall...be a learner employed by the training agency." All of that's fine. This was actually arrived at in consultation with the presenters who came before us, and the people in the industry basically agree with it.
The problem has arisen that no one at the board can tell these people how the rates are going to be set. The insurance companies are saying they're afraid that they're going to be deemed to be the employer and the rate will be set based on their wages, and of course they're not even in WCB. The training agency is saying it's going to be all over the map, that depending on what job they're sent back to train for, it would be a different level in a steel plant than it would be in a day care centre or whatever the placement host is.
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They're unable to get clarification. I know there's some information Ms Murdock and Mitch Toker have got about this, but I'd like to see either clarification or some kind of further adjustment or amendment that would ensure there's either a flat rate established to determine the rates, or that if it's going to be the training agency -- I had trouble wrapping my head around this too, but once you realize the problem, it's an unclear and unstated thing in the act, and they're all quite worried about what those rates are going to be.
The Chair: Are you talking about amendment 6?
Ms Murdock: MS-4, section 2.1 of the bill.
Mr Mahoney: Yes, it's number 6 in your package.
The Chair: That was carried.
Mr Mahoney: Yes. I'm asking for clarification. It's not particularly on the amendment but on what's not in the amendment, but it's all around that amendment.
The Chair: Ms Murdock, if you choose.
Ms Murdock: Sure. In discussing this, first of all, because trainees are unpaid while in the training position, the board pays minimum wage if they're injured. Their classification rate of pay, 90% of net, is based on minimum wage times the number of hours they work, depending on what their training position is. That's the first thing. Second, there is discussion at the board right now about how they're going to deal with whether the agency is the one that's going to have to determine if they're in a high-risk placement or a clerical placement where there is less risk of injury and so on, that kind of thing.
The flat-rate issue we discussed earlier would not be dealt with in the legislation amendment; it would be dealt with either by regulation or by a policy direction at the board.
I think those are the two questions you asked.
Mr Mahoney: So if it's high-risk, it would not be minimum wage, it would be a separate flat rate that would be determined?
Ms Murdock: No. The benefits that would be received by the injured trainee would be based on minimum wage regardless of whether they were in a high-risk business or not. That's the way it is being done now.
Mr Mahoney: So in essence that is a flat rate.
Ms Murdock: Yes, but the premium that would be charged to the agency -- right now the board has not determined that. Your concept of a flat rate is being discussed. That's one of the areas they're going to do. But it could be done either by regulation or by a policy directive at the board, so it doesn't have to be done by amending that section.
Mr Mahoney: Would you address the concern that very often there's not a training agency in the middle, so to speak? It might come right from the insurance company putting the people out into some training situation without going through a training agency. I don't think we want to necessarily force a middleman, middle person, to be put in place if they can deal direct.
Ms Murdock: I know what you're saying. Our motion dealt with private placement agencies, of which there are only 32 in the province. It does not deal with insurance companies who directly place, but there is a section -- just a minute; I can't remember which one it is. "A member of a prescribed class who provides vocational or other training," so if they are a member of the prescribed class, they would come under this section, and I don't know if insurance companies would. I'd have to find that out for you.
Mr Mahoney: They don't want to be designated as the training agency. They simply want to allow the person to go. They don't want to get involved in filling out the forms and taking over the role of a training agency, but they also don't want to be put --
Ms Murdock: Well now, excuse me, if you're going to send people directly there and they want the privileges of this section --
Mr Mahoney: No, no.
Ms Murdock: -- they should be filling out the forms, I would think.
The Chair: Hopefully, this is cleared up. We are on section 9 now.
Mr Mahoney: We're on Bill 165 and there are questions that have come forward. I was under the impression that we had some answers for them, so the purpose is to put it on the record to clarify it. That just deals with the problem.
Ms Murdock: Mr Toker might explain the concern he has. They aren't classified as an agency, as I see it.
Mr Mitchell Toker: I've heard Mr Mahoney raise three issues and I'll try to address each issue.
There is the issue of what benefits the trainees would receive. To elaborate on what Ms Murdock said, when paying temporary disability benefits, the injured unpaid trainee would receive the equivalent of -- it would be based on the Ontario minimum wage: 90% of the Ontario minimum wage times the hours. If it got to the point that they had to establish a wage loss award, that would be based on the average earnings of workers employed by the same placement employer. In other words, the board would look at what a tradesperson the trainee was training for was earning, if it had to establish a wage loss.
Mr Mahoney: And that's paid by the board if there's a wage loss.
Mr Toker: And that's paid by the board.
With regard to the second issue, the assessment rate, as Ms Murdock said, the board hasn't established what the assessment rate would be yet. Nowhere in the Workers' Compensation Act are specific assessment rates for rate groups established, so it's unlikely that the government would want to carve out that one exception for training agencies. The board is looking at how it will establish assessment rates, and it has identified that, from a procedural point of view, it would be quite problematic to charge an assessment rate based on the rate group for the placement host, because you'd have hundreds. So they are looking at possibly establishing one training agency assessment rate.
Mr Mahoney: Are they looking at the possibility of not establishing a rate at all, given that this was an area that was heretofore covered by the board and there was not a specific rate charged in the past?
Mr Toker: No, because what we're doing in this amendment is establishing that the training agency steps into the shoes of the employer for purposes of workers' compensation assessment rates, so an assessment rate will be established.
Mr Mahoney: I'm sorry to belabour it, but in many cases there will not be a training agency in those shoes. So who then --
Mr Toker: And that leads up to your third question: Who are we talking about when we say "training agency"? That has been defined in section 3.1 of the amendment as a person registered under the Private Vocational Schools Act or "a member of a prescribed class who provides vocational or other training." I can't answer for you today whether the voc rehab subsidiaries or divisions of insurance companies are a prescribed class under the Private Vocational Schools Act. We could find that out.
Ms Murdock: And get back to you with that.
Mr Mahoney: I suspect they don't want to be. Thanks for your indulgence on that.
The Chair: We next have a Liberal motion, alternate 1.
Mr Mahoney: I move that subsection 53(2.1) of the Workers' Compensation Act, as set out in subsection 9(2) of the bill, be struck out and the following substituted:
"Same
"(2.1) Promptly after contacting the worker, the board shall contact the employer,
"(a) to provide assistance to the employer in developing return-to-work programs, accommodating programs or rehabilitation programs; and
"(b) to offer the employer assistance and services in returning the worker to employment."
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I think the real issue here is almost the reason that they're contacting the employer. If you read it in the act, it's for the purpose of identifying the employer's need for voc rehab services. What we're suggesting is that it should be to develop return-to-work programs, accommodation programs or rehab programs and to offer that employer assistance and services in returning the worker to employment. So we just sort of cut through it and get right down to what is the real reason for the contact to be occurring. It's to get the worker back to work; it's not to go in on some sort of a mission to identify the employer's need.
We would recognize that all the employers could use the assistance and it would establish a more cooperative relationship between the Workers' Compensation Board and the employer in trying to identify return-to-work programs. Whether it's modified work or rehabing the injured worker or whatever it is, it just sends out a message that I think many employers have been saying to us, and we've heard them here coming before the committee, that it's almost a confrontational attitude. They're not happy with the bill, but they would just like to see the attitude, I guess, be such that they can work together with the board to find ways to develop these programs. I would just ask for support of that amendment.
Mr Arnott: I'll indicate that I'd like to support this amendment as well. In fact, our caucus had planned to put forward a very similar amendment which would be read right after this one should it not be accepted by the government. It would appear to me to be simply good management practice for this requirement to be placed upon the board, and certainly, as Mr Mahoney's indicated, it would be helpful in terms of bringing parties together in a cooperative way.
Mr Carr: Also, a number of the presenters expressed concern that there was no provision to ensure that programs offered by the WCB are effective in meeting the objective of returning individuals to the point of employability. I think over the course of the hearings the general consensus was that this was the key question that all three parties put forward: How do we do that? This would seem to meet that objective.
As Mr Arnott has said very clearly, that's similar to the motion that we will be presenting next should this one fail. We're looking for some guidance from the parliamentary assistant on whether this one will pass. We will be supporting this motion put forth by the Liberals. Failing that, I would ask for the support of our motion following that.
Ms Murdock: I'll indicate that we won't be supporting it and I'll explain why. If you look at the provisions under the current act, under section 52, it's very broad in terms of what vocational rehab services are available. In fact, it's so broad that it can be very unique to the injured worker or to the particular employer in terms of their premises and so on. If you go further into subsection 53(4), I think it's worth noting that voc rehab services provided under the previous sections "may include consultation, provision of information and the planning and design of a vocational rehabilitation program."
I find that the Liberal motion here is very limiting in terms of the return-to-work programs, the accommodation programs or the rehabilitation programs. It shouldn't be just those three things; it could possibly be a whole range of other things. So we're not supporting it.
Mr Steven Offer (Mississauga North): Based on what the parliamentary assistant has just said, it appears that she agrees in principle with the section; her only concern is that the wording is somewhat limiting. So I would expect that the government would be supportive of an amendment such as this which adds to some of the criteria. I was wondering if the parliamentary assistant would share with me whether that happens to be her position.
Ms Murdock: I don't think there is a person in the world who would not -- well, no, I better not say that, because there are obviously some, but there's certainly no one in this room who disagrees with the concept of getting an injured worker back to work early.
Mr Offer: We're not talking about that.
Ms Murdock: We all agree with that and we all think that vocational rehabilitation programs are the way to go. But you know yourself, Mr Offer, as a person with a legal background --
Mr Offer: Don't criticize me. That's a low ball.
Ms Murdock: You know yourself that when you put into legislation language that is limiting or specific, the interpretation of that then is not inclusive. You know that. They'll end up being very specific into those particular kinds of programs and will not look at the whole range that could possibly be available.
The other thing is that there could be something a year from now, two years from now. There could be brand-new methodology. We don't know what it is. By being limiting in the legislation, then we cannot use something that is going to be developed in the future. That's one of the reasons why the broader provisions under the existing legislation are more acceptable for discretionary purposes later.
Mr Offer: Just as a supplementary to this, if I might continue on with the reasoning of the parliamentary assistant, and I think I understand what you were saying, would that mean then that the criteria which you are imposing on the employers as an amendment to section 103.1 of the act, as found in section 28, would fall to the criticism which you've just levelled as being too specific? When you talk about the determining of a refund or a surcharge being based on health and safety practices and other programs of an employer to reduce injuries and occupational diseases and on vocational rehab practices and programs of the employer, do you think that too falls within your criticism?
Ms Murdock: Well, I think clause (d) covers my comments, which is, "such other matters as the board considers appropriate."
Mr Offer: So then if we inserted in the amendment, in the Liberal motion by Mr Mahoney, the words that follow (a), (b), (c) and (d) of your motion, you would find that acceptable?
Ms Murdock: No. I still wouldn't.
Mr Offer: How come? How come the government, through this act, can say to employers, "Your surcharge or your refund is going to be determined on (a), (b), (c) and (d) of section 103.1," and you won't accept an amendment by the Liberal Party, by Mr Mahoney, that says why doesn't the board, under an amendment to subsection 9(2), give to those same employers assistance in being able to meet the very criteria that you set out 19 sections later?
Why is it that you only have a piece of legislation which dictates and provides no assistance? Why can't you have one that at the very least not only dictates but also provides assistance to employers so that they can provide the type of vocational rehab service, the health and safety practices, that not only will help them but will help the workers of this province, not only in getting back to work but hopefully preventing accidents in the first place? Why is it that the government continues to dictate to employers without providing assistance to those same employers, hopefully to meet the principle that we don't want workers injured in the first place?
Ms Murdock: First of all, I would disagree with you in terms of subsection (3) of your section 28 that you mentioned. I think that it is general enough, that it doesn't get into specific kind of language.
Secondly, I would say that we have operated in the current act on a voluntary basis in terms of those programs, in terms of getting them implemented in the workplace in this province. I think it is unfortunately sad but true that they are not evident in all workplaces, and they have to be if we are going to reduce accidents in this province. So yes, the government does become patriarchal in that section; I'm not disputing that, but I think we have to, for those businesses that don't see fit to put good health and safety practices and good vocational rehab practices in their own workplaces.
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Mr Carr: Maybe the parliamentary assistant could be a little more specific in terms of giving us specific examples of what's missing. You say "all-inclusive." If you could be specific, what wouldn't be included with this amendment, then, examplewise?
Ms Murdock: Well, okay. I don't know all of the voc rehab and return-to-work programs, accommodation programs and everything that is available, nor do I know the new areas that are coming up that human resource specialists would be developing in the future.
I don't see any need to make that kind of change when we've already got subsection 53(4) that says, "Vocational rehabilitation services provided under subsection (3) may include consultation, the provision of information and the planning and design of a vocational rehabilitation program," and in the generic one under rehabilitation generally under section 52 of the actual act, not the bill, you have, "To aid in getting injured workers back to work and to assist in lessening or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures as it may deem necessary or expedient, and the expense thereof shall be borne, in schedule 1 cases, out of the accident fund and, in schedule 2 cases, by the employer individually, and may be collected in the same manner as compensation or expenses of administration."
It covers anything that may be developed. It's unfortunate but it's true that when you put into legislation specific areas, then you're confined to those areas. That's why I think it should be more general so that you can apply these kinds of programs. You don't know that individual workers may require a very different program. It's not like a surcharge either.
Mr Carr: You said you didn't know of all the programs, so you don't know specifically what could be excluded.
Ms Murdock: Well, I don't know what they are. I don't know --
Mr Carr: So you can't give us any examples of what would be excluded, then, with this.
Ms Murdock: Excluded?
Mr Carr: Yes. Like, specifically, why the concern with this?
Ms Murdock: I guess it's the Interpretation Act that I'm thinking of, and law school training, that you sit there and look at, whenever you have legislation -- your legislation is your bones, and your regs and policy are your flesh. So you don't want to limit yourself within the legislation, so that you can develop or expand or be more specific within your regulations or policies. So I'm looking at it from a legal perspective, I recognize that, but I think it's very true that we don't know what cases are going to come up that may require something very different, that may not even be within the scope of a return-to-work program, an accommodation program or a rehab program.
Mr Carr: So you will discuss this with the legal people in the ministry, then, if that's the concern?
Ms Murdock: Yes.
Mr Mahoney: I just had a little twinge there with that last comment. I think you said "that may not be within the scope of a return-to-work program or a rehab program." Are you suggesting that we're heading towards some kind of a compensation system that eventually will ignore returning to work?
Ms Murdock: No.
Mr Mahoney: Isn't that the principle?
Mr Klopp: It's lawyer talk.
Ms Murdock: No. Emphatically not. I'm saying that getting a worker back to work may require something that's not within something we know of today. It could be something entirely different. But I would ask you, since this is a Liberal motion, whether or not you would not think that your motion is redundant, considering subsection 53(11) of the act?
Mr Mahoney: Which says? Where is that?
Ms Murdock: Which says, "A vocational rehabilitation program may include vocational training, language training, general skills upgrading, refresher courses, employment counselling (including training in job search skills and in the identification of employment opportunities), and assistance in adapting the workplace of an employer to accommodate the worker."
Interjections.
Ms Murdock: Which one? No, it's 42 of the act, but we're pulling out one line.
Mr Mahoney: I don't know. Isn't that defining specifically the areas that you're referring to? We're reading this as we talk, but you're suggesting that the specific areas around vocational rehab are identified in subsection 53(11), that vocational rehab may include vocational training, language etc.
Ms Murdock: "May include."
Mr Mahoney: So they're being quite specific in there.
Ms Murdock: Yes, they are.
Mr Mahoney: I took your criticism of my motion to be that I was being too specific, or limiting.
Ms Murdock: Limiting.
Mr Mahoney: I have some difficulty in understanding how you can throw a clause specific back at me to counter the argument that I'm being too specific in my clause.
Ms Murdock: No, because --
Mr Klopp: It's lawyer talk.
Mr Mahoney: I guess it is lawyer talk.
Ms Murdock: Yes, it is lawyer talk, and he's not a lawyer, so that's what he keeps telling me.
Mr Mahoney: Since I'm not one, you know.
Ms Murdock: I think it's covered by the words "may include."
Mr Mahoney: You see, I'm trying to do something that real people will understand, with all due respect.
Ms Murdock: Well, excuse me, but I don't think anyone, including lawyers, understands all of the Workers' Compensation Act --
Mr Mahoney: Normal. Ordinary, maybe; that's the word I want.
Ms Murdock: -- because it is very complex. There's no doubt about it. But the words "may include," or the word "may," is expansive and you can put anything in there. Yours does not do that.
Mr Mahoney: The issue here, you see, is not about defining what will be in a voc rehab program.
Ms Murdock: No. I know.
Mr Mahoney: That may well indeed be important to do in another section of the act, and you're pointing out that it is done in that section, and perhaps in other areas of this act, which, unlike you, I've not consumed yet, nor do I want to.
Ms Murdock: Well, I haven't consumed it either.
Mr Mahoney: But the issue we're raising in our amendment, I think you've totally missed the point. What we're talking about is offering assistance to the employers in getting the worker to return to work. Clause (b) could not be more unlimiting in the wording of it where it simply says that the board should contact the employer, after having contacted the worker, "to offer the employer assistance and services in returning the worker to employment."
What this really says is, "Mr Employer or Ms Employer, you are our customer, and as a result of your being our customer, and we submit a bill to you every month and you pay that bill to keep us in business" -- this is the Workers' Compensation Board talking -- "we're going to offer you a service, and that service will be in such a way to help you get your injured worker back to work."
It is as broad and as wide open as you could possibly want it. It does not define or even deal with definitions of voc rehab programs or return-to-work. It simply says: "We're going to help you. You're our customer, and we're going to help you. We're going to help you in developing return-to-work programs, accommodating programs, rehab programs, or we're going to offer you assistance and services to help you get the worker back to work."
How in the world is that specific? That's about as wide open as you could want it, and the point of it is that it changes the tone of the legislation, as Mr Offer pointed out, from being one of being a dictum to the employers to saying, "You're our customer and we're here to help you," and in the end, by helping the employer, if the goal is to return the worker to work, you help the injured worker, which is supposed to be the purpose of the Workers' Compensation Act.
I understand the fact, with due respect, that you may have been given some direction not to accept certain amendments, but don't make an argument that is based on, really, false information that this amendment is too specific. Tell me you won't support the amendment because the minister told you not to. That I understand. But I don't understand an argument that says I'm being too specific when it's absolutely contrary to that statement.
Ms Murdock: I don't agree with you at all, but I think we could go on forever agreeing to disagree. I've made my statement as to why I'm not supporting it, and I stand by that.
The Chair: Further discussion on the Liberal motion by Mr Mahoney? Seeing no further discussion, all those in favour? Opposed? Defeated.
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Mr Mahoney: It's a waste of time. Did you do a count there?
The Chair: Did I do a count?
Mr Mahoney: I asked you first.
The Chair: Yes, I did.
Mr Mahoney: Would you do it again?
The Chair: It was six to five, opposed.
Mr Mahoney: Who's voting? Did the parliamentary assistant vote?
The Chair: Yes, she did.
Next, a PC motion.
Mr Arnott: I move that subsection 53(2.1) of the Workers' Compensation Act, as set out in subsection 9(2) of the bill, be struck out and the following substituted:
"Same
"(2.1) Promptly after contacting the worker, the board shall contact the employer for the purpose of offering the employer the assistance and services of the board to help to return the worker to employment."
As we indicated earlier, this is similar in intent to what Mr Mahoney put forward in the previous amendment. I'm not sure what I can say to add to the discussion that was already put forward except to say that I hope the parliamentary assistant will look at it favourably and give consideration to it.
In my opinion, it's a fairly straightforward matter. I'm not a lawyer so I may perhaps be missing some of the legalistic aspects that the parliamentary assistant indicated, but to me it's just simple good management practice: the board offering its voc rehab services to employers in a reasonable period of time. I would hope that if the parliamentary assistant and the government members stand in the way of this amendment being passed, at least we'll get some commitment from her that this will be adopted as policy by the board.
We talked about regulations being again more nuts and bolts as opposed to the broad outline of the legislation. I just think it's a sensible idea and I hope you would give consideration to it.
Ms Murdock: I'm thinking ahead to the government amendment that's coming up. Through the consultation and when the public hearings were on, the whole idea of that was, number one, after discussing with the worker and getting the medical report back as to limitations and so on, then the employer would be contacted following that to make a determination as to what kinds of things might be needed, whether or not the employer even has that in place or whether some assistance would have to be provided.
I would say to you that I believe our amendment -- and I realize that we do opposition amendments before we do ours -- addresses that concern and so the government members will be supporting the government amendment, and I believe we do --
The Chair: The government?
Interjection: The bill itself.
Ms Murdock: I mean -- sorry, in the bill.
Mr Mahoney: You have an amendment.
The Chair: No, not to this section.
Ms Murdock: I think we already do that under subsection 9(3) in the bill.
Mr Mahoney: Which number is that?
The Chair: She's talking about in the bill.
Ms Murdock: Subsection 9(3) in the bill. Where it says, "Subsection 53(3) of the act is repealed and the following substituted." We're not amending that section. "The board shall provide the worker and the employer with vocational rehabilitation services if the board considers it appropriate to do so."
Ours is coming up. Where is it now? Just a second. Here we go.
Interjections.
Ms Murdock: It's never been done before with "and the employer" in that section.
Mr Arnott: You understand our intent.
Ms Murdock: Yes, I understand.
Mr Arnott: And you're saying that our intent is valid and that your amendment covers off what we're trying to do.
Ms Murdock: I think the section does. Our amendment -- we don't have one on your section. I don't see one, anyway. Just a minute.
Mr Carr: While they're looking, basically, if I followed you there -- and again I don't need to rehash the reasoning behind it; quite a few of the groups came forward and expressed a desire to have an amendment like this during the public hearings. If I understood the parliamentary assistant, what she just read and said -- did you have a revelation just come to you?
Ms Murdock: No.
Mr Carr: Go ahead and I'll save my question.
Ms Murdock: In the act it says, "The board shall provide a worker contacted under...," and that's the way the current legislation reads. The board has never done it where they would work on voc rehab services with an employer. They never had to under the existing legislation. I and the ministry believe that "The board shall provide the worker and the employer with vocational rehabilitation services..." covers what you're suggesting.
Mr Carr: What you said a few minutes ago was "if the board considers it appropriate to do so." You're talking about being specific. That is the most vague language possible: "if the board considers it appropriate...." How are we supposed to take that? What is appropriate in the board's mind? If you leave it vague like that, to me, legally that is worse than trying to define it. You say it's not defined. Define it and add what you'd like rather than saying "if it's appropriate to do so." That leaves it fully up to the discretion of the board. What we're saying as legislators is that we need to be more specific; it's our job to tie this up. If the board is going to do it through the regulations or whatever, then let's be clear about what they mean. So what do they mean by "it's appropriate to do so"?
Ms Murdock: I think it needs to be broader so that the individual circumstances of the individual workplaces will be considered on their own needs and their own requirements or the injured worker's requirements. So that the board, on the basis of reports that it gets in, medical reports and so on -- it may only be a handle or a knob that needs to be changed. If the board determines that this is all that needs to be changed or that flextime, whatever -- I don't know. But whatever it is, it's broad enough that the board can make that determination.
Mr Carr: I know your background, that you've worked many years in this, and you see it as being the board would never do anything that wouldn't be considered to do that, but the way you read subsection 53(3), basically it leaves it to "if the board considers it appropriate to do so," which you just read. If, let's say, another particular group is in there at the WCB, it leaves it up to those individuals and they may decide that there isn't anything that's appropriate.
Ms Murdock: I don't know what you mean. What do you mean if another group is at the board?
Mr Carr: The way you're explaining it, you're saying, "Of course the board is going to do everything it can to consider it appropriate to do so." But when they leave it that open, the board may decide it isn't appropriate, and that's why we're saying we need to have it defined. You're just automatically assuming, because of your background, which is commendable -- but when you leave it open that the interpretation is left to the board, and let's say a big, bad government comes in -- I know you think you're going to get elected again, but let's assume you don't and there's another government. You're leaving that wide open. Why don't you want to tighten it up, particularly as you head out, so that "appropriate to do so" isn't left to the board? That's what I can't see.
Ms Murdock: First of all, I believe I have explained that individual circumstances alter individual cases, so by leaving it broad enough the board has the discretion to make that determination as to what may or may not be needed. But if you look at this in isolation -- you have to look at the whole thing. The whole bill is geared to getting people back to work, getting the company to have fewer lost-time accidents and to improve health and safety in the workplace and all those kinds of things. What may be appropriate in one workplace will not be in another.
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Mr Carr: But do you see what I'm getting at? You're assuming "appropriate" means expanding it.
Ms Murdock: Not necessarily.
Mr Carr: I'm saying that "appropriate" could be condensing it significantly. That's why legislation needs to be, I think, a lot clearer.
Ms Murdock: I'm going to have Mr Toker explain a situation where the board considers it inappropriate to provide rehab services.
Mr Toker: This is just adding to what Ms Murdock said a moment ago. There may be circumstances when the board may consider it inappropriate to provide voc rehab services either to the employer or to the worker. The situation that comes to mind is the situation where the worker has returned to work within a relatively short period of time and for all intents and purposes their claim has been resolved. In those instances, arguably it would be quite inappropriate for the board to be required to offer or provide vocational rehabilitation services either to the worker or to the employer. I think from a policy perspective those instances were kept in mind when retaining that discretion for the board in the language.
Mr Carr: I'm not a lawyer, but wouldn't the way it's written there, saying provide "services of the board to help to return the worker to employment," mean that legally if the person is already returned to employment this particular section wouldn't apply, or am I wrong? Legally, that just seems so commonsense to me. I'm not a lawyer, but maybe that's why I have a little common sense.
Ms Murdock: I would say no.
Mr Carr: The only guy who didn't was the guy from Markham. What was his name? Jag Bhaduria. He wanted to be a lawyer.
Interjection.
Mr Carr: No, I'm not a lawyer. I wanted to be, though.
Mr Mahoney: I saw you in court once. Were you not there in court?
Mr Carr: No, I was impersonating a goal-tender.
The Chair: Order, please.
Mr Carr: I thought there was further explanation. No?
Ms Murdock: I apologize.
Mr Carr: It's okay. We were having a little fun at this late hour.
The last line says "to help to return the worker to employment." I would assume, with the argument the gentleman was making, if they're already back to work, this wouldn't apply and there would be no need to contact, based on that last line.
Ms Murdock: I'm trying to think. The whole bill's intent, as stated in the purpose clause and also in almost all sections of the whole bill, is saying that very thing, to help to return the worker back to work. If you're looking at this grammatically, you're probably right that it's to call the employer: "the purpose of offering the employer the assistance and services." The focus isn't on the other, but the whole bill is on returning the worker to work.
Mr Carr: But I'm looking at it from the standpoint that the purpose may be great, whatever the purpose is in theory -- we all know purpose clauses are great, but when we get down to the actual specifics, what are we going to do? Everybody can agree on the purpose clause. It can say the sky is going to be bluer than blue and we're all going to brake for cats and everything else in the world. But when you get into the specifics of it and actually doing it, which is what we're talking about -- everybody can agree on the purpose clause, but if you want it to actually work, we need to be a little more specific.
All we're saying is that they will contact the employers to offer those services. You're assuming it's going to be done and that all measures are going to be taken to get that person back to work. I'm saying this might not necessarily be the case. If you leave it "appropriate to do so," then for whatever reason, whether it's a staff shortage at the WCB because of costs or whatever, we all of a sudden don't do things. If it is put in the act and laid out specifically, then as we go away as legislators we're going to know it's going to be done. The principle seems fairly simple to me.
One suggestion I might make, if I'm making a bit of an impact on the members is, would it be possible to stand this down to some other point, while they think about it, and go on to the next one?
Ms Murdock: I'm not disagreeing with Mr Carr's concept; I just think our language covers it. We're not going to agree on language is what I'm saying, really.
Mr Carr: Okay. I don't want to go on. I just wanted to be helpful.
Ms Murdock: And you have been.
Mr Mahoney: I want to speak in support of this amendment, but I want to ask the parliamentary assistant if she can tell me in non-legalistic terms, because I don't care about the wording as much as how it actually works. Your section says there's agreement, right up to the word "of": "Promptly after contacting the worker, the board shall contact the employer for the purpose of...." The question here is, what is the purpose in the board contacting the employer?
When you go back to the purpose clause -- and whenever you use the word "purpose" in this bill, you should be referring to the purpose clause, I presume -- it says in (c) that the purpose of this act is "to provide rehabilitation services and programs to facilitate the workers' return to work."
What the Conservative amendment is saying and what our amendment basically said -- but I think the Conservative amendment is actually simpler and leaves it more wide-open without nailing it down to the kind of specifics you were worried about and so in some ways should be easier for you to support; based on your argument against our amendment, it should be easier for you to support this.
When the board contacts the employer "for the purpose of," in this clause identifying the employer's need, is the board going in to do some kind of audit of the employer's requirements, or systems in place or lack of systems in place, or ability to deal with the services of vocational rehab? Are they going in to say: "All right. You've got an injured worker. Are you guys capable of providing voc rehab services?" Or are they going in to say, "How can we help you?"
Ms Murdock: Yes.
Mr Mahoney: What do you mean "yes"?
Ms Murdock: The latter.
Mr Mahoney: They're doing the latter?
Ms Murdock: I would say so. If they've contacted the worker and the worker's health care provider has stated they can't lift 10 kilograms and can't lift their arm above their shoulder or whatever, they call the employer and say: "These are the restrictions on the worker. The worker can go back to work but only if they can't lift 10 kilograms and they can't lift their arm above their shoulder. Do you have anything there within your workplace that would be able to accommodate that? If you don't, what kinds of things can we do to get the worker back to work?"
Mr Mahoney: But to take the words you just used, to try to be as close as I can, the board goes in and says: "Do you have the facilities there to deal with this? If you don't, how can we help?" But, "If you don't, how can we help?" isn't said there. It simply says to go in and identify it. Then they have this almost trapdoor phrase in subsection (3): "If the board considers it appropriate to do so."
All throughout this bill there is that concern. There's the ability you referred to earlier where -- you didn't refer to this one, but as an example, paragraph 65.2(2)5: "Any other matter agreed to by the board and the minister." Go on into other sections and there's "such other matters as the board considers appropriate."
What frightens the employers here is that they want to look at the board as being an agency that's there to help them return the worker to work. They've got all this power throughout this bill to do whatever the hell they want based on whether or not they -- and you never know who "they" is. Did you ever try to figure out in this world who "they" is? You can never figure it out. If you hire a consultant or someone to go and help you out with this, the consultant will come back and say, "They don't consider it appropriate." "Could I have a name? Is there a first name to this `they,' or a last name?" You never know. You deal with some invisible bureaucrat somewhere who has decided it's not appropriate to offer voc rehab services to the employer.
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Why is it not appropriate? The employer needs help. The employer is paying the cost of the premiums. The employer is the customer. Why won't you simply say, somewhere in here, without the caveat that allows the board to go and hide in a back room somewhere, that it's the board's responsibility to provide voc rehab services to the employers for the purposes of getting the injured worker back to work? That's what the amendment by the Conservative Party says and I believe that's what mine says. I'm happy to accept this one if you'll accept it. If that's what you really mean and you're telling us you mean it, why won't you say it?
Ms Murdock: The board has to have some discretion. I realize there is concern around that area, but it has to have some discretion in the instances that have already been mentioned by Mr Toker and in instances where the company no longer exists.
Mr Mahoney: You can cover that one, you can put that in there. If a company doesn't exist, you don't have to offer it any help. I'd live with that.
Ms Murdock: Where it is "appropriate to do so" I think it covers it all. I think our language covers the gamut of possibilities.
Mr Mahoney: No, you don't. You can't say that when you admit that the object here is to get the worker back to work. You admit that in practice --
Ms Murdock: But you're looking at that section all alone, by itself.
Mr Mahoney: No, I'm looking at the whole bill.
Ms Murdock: I'm saying that the whole bill, if you look at the whole bill, does do that. That is the intent. I think it's pretty evident.
Mr Mahoney: That's the point: it doesn't. If you go to the purpose clause, it tells you what the purpose is. If you go to this clause, what it really says -- and I don't believe this wording is there by accident; somebody is driving this agenda -- is that the Workers' Compensation Board "shall contact the employer for the purpose of identifying the employer's need for vocational rehabilitation services," not for helping the employer, not for helping them provide voc rehab services. When you extrapolate that into all the other bills, what could be the impact on the NEER program? What could be the impact when you read through here of the board's almost policelike powers to make decisions without any accountability? This type of legislation is all about wording.
Whether we are or aren't lawyers, the fact of the matter is that it's the legal interpretation that is used somewhere down the road by a consultant on behalf of a worker or an employer, that they will hang their hat on two or three words or one word in these documents. That's why it's so important that they be clear and simple.
I understand the requirement for legal counsel to draft bills, and sometimes you read them and you go, "Boy, what does that say?" But when you sit down and look through it, I understand that requirement because it's going to have to be interpreted within the judiciary or something of that nature down the road or the Legislature. That's fine, I can live with that.
But you've told us what the intent is, and the intent is to help the employer get that worker back to work. You agree with that. So you can't tell me that turning these down, which say exactly that, in everyday English language that's been drafted properly by legal counsel -- it's not something the Conservative critic or I drafted out of the air. Just like you in government, we go to the legal counsel people and say, "Here's the amendment we want to do; tell us how to do it," and they draft it up. So it is in legalese, it is in terminology that should be acceptable to put in a bill and it says what you say you want to say, and you won't say it. It's frustrating. We're sitting here going: "Just give us a little crumb. Just throw a little tidbit into the ring so we don't feel like we're totally wasting our time here."
Ms Murdock: You're asking me for a response? I thought it was all rhetorical.
Mr Mahoney: Do what you want.
Mr Offer: I'm supportive of the amendment for all that has been said by both opposition parties and indeed also by the parliamentary assistant, because I think in a strange way she has spoken eloquently about the need for the amendment.
I guess the problem I have with 9(3) is not any of the wording, except that it is going to be complaint-based: For the board considering something to be appropriate, something is going to trigger the intervention of the board to determine appropriateness, and the thing that will trigger the intervention of the board will be a complaint.
That might be necessary, but I think there is an opportunity in these amendments to take it one step earlier and give to the employers the opportunity of asking the board for assistance in devising back-to-work, vocational rehab service, give to the employers of the province the opportunity not when the board determines it to be appropriate but when they also would like that type of opportunity, to say to the board: "We've got this. We want you to provide to us some assistance in an effective vocational rehab service."
I just have difficulty understanding why a piece of legislation and amendments to an act would not give that opportunity to employers to get out of this complaint-based, adversarial, good guy-bad guy type of scenario. The amendment before the committee and the previous amendment in themselves are not long-winded amendments --
Mr Mahoney: The amenders are.
Ms Murdock: The amendments aren't long-winded.
Mr Offer: There is a time when a word comes out of my mouth which I wish I could just grab back. However, that being said, I'll rely on Hansard to give the proper interpretation of what "long-winded" means. It means precise and right to the point.
It gives us a wonderful opportunity to cast a new atmosphere around vocational rehab service, where it becomes more of the nature of assistive, less confrontational, more cooperative, less adversarial. I believe very much that this is more in the best interests of the worker than of anyone else, so I would like to ask the parliamentary assistant if she would -- let me just say this. If I don't hear anything from the parliamentary assistant, I'm going to assume she says yes.
The Chair: We'll stand recessed for five minutes till we get a response from the parliamentary assistant.
The committee recessed from 1740 to 1747.
The Chair: Do we have our response from the parliamentary assistant to Mr Offer's inquiries?
Ms Murdock: May I just have a brief summary of the point he was making?
The Chair: Mr Offer, in 30 seconds, a summary of your question.
Mr Carr: It's impossible. I'd like to hear that.
The Chair: Yes, he can do it. I've seen him do it in the past.
Mr Offer: Why can't we accept an amendment which moves us away from a complaint-based, adversarial approach to one that is cooperative and will be in the best interests of the injured workers today and for all time?
Ms Murdock: Very succinctly put. You are to be commended. I'm just so surprised.
It's interesting that you would think this is complaint-based, because what happens in this section, in both (2.1) and in (3), is that the injury occurs, the injured worker's off, it's determined what kind of restrictions they have and what kind of voc rehab or accommodation would be required, and then the board would call the employer on the basis of, first of all, under (2.1), identifying what needs there would be, and then under (3) determining how that could be best decided.
I don't know whether I'd agree with you that it's complaint-driven; that would be my first point. I agree with you that the whole system is set up on an adversarial basis, but I don't think that section is truly complaint-driven.
The Chair: Further discussion on Mr Arnott's motion? Seeing none, all those in favour? Opposed? Defeated.
A Liberal motion next.
Mr Mahoney: Why don't we adjourn? We've got a vote in five minutes. Rather than begin, why don't we --
The Chair: We do have a vote coming up in the House --
Mr Carr: Plus everyone might want to hear Bill Murdoch speak.
Mr Mahoney: Unless the parliamentary assistant can make my day and tell me she'd be prepared to endorse this one, because it deals with the other health care professionals.
Ms Murdock: Sorry. In anticipation of going upstairs for the vote, I had closed my book.
Mr Mahoney: If we need to debate this at length I would say let's adjourn, but if you can support it, I won't debate it, we'll just do it.
Ms Murdock: What did we do that was different? I was just wondering how ours is different.
The Chair: I would suspect, from the public hearings we conducted, that this may turn into more than a five-minute discussion, so this committee will stand adjourned until Monday, November 14.
The committee adjourned at 1751.