CONTENTS
Wednesday 16 November 1994
Workers' Compensation and Occupational Health and Safety Amendment Act, 1994, Bill 165, Mr Mackenzie / Loi de 1994 modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail, projet de loi 165, M. Mackenzie
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: 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:
Carr, Gary (Oakville South/-Sud PC) for Mr Jordan
Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway
Sutherland, Kimble (Oxford ND) for Mr Klopp
Also taking part / Autres participants et participantes:
Ministry of Labour:
Cohen, Sherry, legal counsel
Murdock, Sharon, parliamentary assistant to the minister
Toker, Mitchell, manager, workers' compensation unit
Clerk / Greffière: Manikel, Tannis
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1605 in committee room 1.
WORKERS' COMPENSATION AND OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT LA LOI SUR LES ACCIDENTS DU TRAVAIL ET LA LOI SUR LA SANTÉ ET LA SÉCURITÉ AU TRAVAIL
Consideration of Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act / Projet de loi 165, Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail.
The Chair (Mr Mike Cooper): We'll be continuing with our clause-by-clause analysis of Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act. We now have a Liberal motion.
Mr Steven W. Mahoney (Mississauga West): I move that subsection 53(10) of the Workers' Compensation Act, as set out in subsection 9(5) of the bill, be amended by adding after "physician" in the last line "or other health care professionals."
I hope this motion might be one that survives. I sort of recall from the hearings that there seemed to be a fairly broad consensus on the fact that there are a lot of people involved in the workers' compensation system who can be part of the solution and part of too many of the problems that occur. I would give you an example of occupational health and safety nurses.
I spoke at the Ontario Hospital Association convention to a group, in a morning session last week, of health and safety nurses, and they have a lot of very, very good ideas, good input that I think they can bring to this. We should take this out of the realm of being strictly the purview of doctors or physicians and allow for other health care professionals to have input and be involved in the system.
I could go on and name others, such as the chiropractors and podiatrists. There is any number of them, and for fear of excluding some I'll try not to be too detailed in that area, but I have been contacted as a result of the paper that we put together in the Liberal caucus. We were approached by numerous members of the health care professions, both during the outreach that we did and afterwards, suggesting that they had many good things to bring to the table.
I think they do. We heard that at the committee and I would hope that the committee would support this amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour? Opposed? Defeated.
Mr Mahoney: Not even a reason why?
Ms Sharon Murdock (Sudbury): We've got a government motion coming up that's the same, basically.
Mr Mahoney: So why didn't you support this one?
Ms Murdock: The effect is the same, but the government motion ties it in with the Regulated Health Professions Act.
Mr Mahoney: If they're going to be defeated that easily, I'm going to have to speak about them longer.
The Chair: We now have a PC motion. Mr Carr.
Mr Gary Carr (Oakville South): I move that subsection 53(10) of the Workers' Compensation Act, as set out in subsection 9(5) of the bill, be struck out and the following substituted:
"Vocational rehabilitation
"(10) If the board determines, as a result of an assessment or otherwise, that a worker requires a vocational rehabilitation program, the board in consultation with the worker, the employer and, if possible, any appropriate health care practitioner of the worker, shall design and provide one.
"Health care practitioner
"(10.1) In this section, `health care practitioner' means a member of the college of a health profession as defined in the Regulated Health Professions Act, 1991."
As this is similar to the government's motion with the exception of a few minor changes, I suspect it will be supported by the government, if nothing else than to let us win one vote, because it is very, very similar and I would like to participate and offer something that is constructive.
This amendment is in keeping with a recent proclamation of the Regulated Health Professions Act, which as we all know, having been involved in that, introduced fundamental changes in the way health care services are delivered in Ontario, dealing with increased public accountability by health care providers, recognition of the expertise of a greater range of health care professionals, increased freedom for consumers to choose from among regulated professions, designing and providing vocational rehabilitation programs.
The wording ignores the fact that many injured workers may have non-physicians participating in their care or as their primary care provider. This section, we believe, fails to recognize the expertise of rehabilitation professionals in designing and providing vocational rehab programs, and I think it would be a shame not to include them. Psychologists, for example, commonly treat WCB clients for such conditions as stress disorders, chronic pain syndrome, depression and anxiety disorders that have arisen as a result of the workplace injury.
I think this is an amendment that has come forward as a result of some of the discussions during the hearings. The Ontario Psychological Association and the Ontario Chiropractic Association support this amendment as well.
Seeing as it is similar to the government one, I suspect it will support us on this particular amendment, because it has been brought forward in good faith to attempt to make this bill a little bit better. Hopefully, the parliamentary assistant will be able to support it, and if not, explain why as we go along.
Ms Murdock: Actually, everything that you said I agree with and everything Mr Mahoney said, I agree with that too. That's why we're bringing in our motion.
Just two points: In your subsection (10), Mr Carr, when you look at it, there's an additional line we're adding in ours, not only "any appropriate health care practitioner," but also "any health professional treating the worker shall design and provide one." So it extends it a little further.
Also, in subsection (10.1), we're trying to follow the other acts that exist, and the Regulated Health Professions Act refers to "health professional" rather than "health care practitioner." So we're going to try to keep to that language.
That's why we won't support this one. We support it, but it's just that the language is going to be more legally correct in the next one.
Mr Mahoney: Let me ask if we have a list of who is actually identified in the Regulated Health Professions Act, 1991, as a health professional.
Ms Murdock: There are 26 new regulated health professionals who have been recognized. All of the ones you mentioned earlier are included in that.
Mr Mahoney: Could we get a list of that?
Ms Murdock: We can get a list and provide it to you, yes.
Mr Mahoney: How soon can we get a list of that?
Ms Murdock: We just have to get the schedule to the act, so we'll have to call the Ministry of Health and get it.
Mr Mahoney: So some time before the end of the year.
Ms Murdock: Oh, now, not too sarcastic here. Monday for sure at the latest.
Mr Kimble Sutherland (Oxford): If we had a copy of the bill or a copy out of the bill, would the Clerk's office be able to provide that?
Ms Murdock: I don't know.
Mr Sutherland: That would outline what's listed?
Ms Murdock: Yes. It was Bill 43.
Clerk of the Committee (Ms Tannis Manikel): I'll go and look and see if I can find it. If it's in the regulations, it might not --
Ms Murdock: In any case, we can call the ministry and ask for the 26 listings.
The Chair: Further discussion on Mr Carr's motion?
Mr Carr: Yes, I was just going to say that, as I understand it, you agree with it. It's just that I wanted to keep them with the act.
The Chair: No further discussion? All those in support? Opposed? Defeated.
We have a government motion.
Ms Murdock: I move that subsection 53(10) of the Workers' Compensation Act, as set out in subsection 9(5) of the bill, be struck out and the following substituted:
"Vocational rehabilitation
"(10) If the board determines, as a result of an assessment or otherwise, that a worker requires a vocational rehabilitation program, the board in consultation with the worker, the employer and, if possible, any health professional treating the worker shall design and provide one.
"Definition of health professional
"(10.1) In subsection (10), `health professional' means a member of the college of a health profession as defined in the Regulated Health Professions Act, 1991."
Basically, I've already stated, and it just concurs with what the Conservative Party has stated.
The Chair: Further discussion? Seeing none, all those in favour? Opposed? Carried.
PC motion.
Mr Carr: Subsection 9(7) of the bill, subsections 53(12) and (13) of the Workers' Compensation Act.
I move that subsection 9(7) of the bill be struck out.
Subsection 9(7) of the bill extends assistance to the worker "in seeking employment for a period of up to six months after the worker is available for employment" and further allows for an additional six months even if not requested by a worker or employer. What this does is it implies that job search assistance can be provided even if the worker did not wish the assistance or was otherwise non-cooperative in the rehabilitation process.
As we all know, having heard some of the public consultation, there was some concern expressed that this provision could be abused and misused as a way of extending benefits to workers who are not cooperating with the WCB, particularly in the absence of guidelines to control the WCB's use of the initiative. That's the thrust of the reason we want that struck out.
Just very quickly too: This was during the public consultation. The Employers' Advocacy Council had talked about this. The legal clinics of eastern Ontario and also the Ontario Hospital Association talked about some of the problems relating to this particular subsection of the bill.
Ms Murdock: It already exists in the act under subsection (11), but it clarifies the time limits and it is not mandatory. I'm not sure if I heard you say that it would be automatic that they would get it even if the worker didn't want it. If the voc rehab counsellor determines that following rehabilitation and ability reskilling, then this would allow them to include assistance in seeking employment. There is really no change already, but it limits it for a period of up to six months, so I would not agree with your removal of that section.
Mr Carr: So you're saying who right now can make that decision?
Ms Murdock: Right now it's done under the act, under the counsellors they have.
Mr Carr: So this in your mind isn't an extension?
Ms Murdock: Sorry? This in my mind is what?
Mr Carr: Is not an extension?
Ms Murdock: No, no, it isn't at all. You're saying that beyond what they already get in the act this would add another six months to it?
Mr Carr: Yes.
Ms Murdock: No. I'll let Mitch Toker explain.
1620
Mr Mitchell Toker: In the bill itself in subsection 9(6) -- I'll point you to that for a moment -- you'll see that "assistance in seeking employment" is struck out of the current subsection 53(11). It's then added as its own subsection in subsection (7). The reason we did this in the bill is that the current structure of that section that establishes in subsection (11) the possible components of a voc rehab program, which includes assistance in seeking employment, has caused some confusion in how the board administers that and how the time limit or the extension of the six months is administered.
Mr Carr: What do you mean, caused confusion?
Mr Toker: I'm sorry that my explanation is so confusing. The six months referred to in subsection 53(12) --
Ms Murdock: Of the act.
Mr Toker: -- of the act has been interpreted as a mandatory requirement that the board extend the period by six months. What we've attempted to do in the bill is establish in the new subsection (12) that a voc rehab program may include assistance in seeking employment, and then if you turn over into subsection (13), we said that it may be extended for a further period of up to six months. It's discretionary.
The assistance in seeking employment is not a new element of a voc rehab program. It already exists in subsection 53(11). We've re-established it in 53(12) and we've tried to re-establish more clearly that the additional six months is discretionary.
Mr Carr: Just a quick clarification: You're with legal, then?
Mr Toker: I'm with policy.
Mr Carr: Policy. Okay. But it's for legal reasons that you're essentially saying this has been done.
Ms Sherry Cohen: It doesn't change the substance of the section; it simply clarifies the language and makes it clear that the board has a discretion and not a duty with respect to extending it for six months.
Ms Murdock: In fact, it does what you really want it to do. Your concern, at least from what I heard you say, is that you want it to not be a mandatory thing that it's automatic that you get assistance to seek employment, and ours would do that.
Mr Carr: What I'm wondering is why the confusion with people like the Ontario Hospital Association? I'm just wondering why we could get so confused over something like this, because you remember during the hearings they were the ones who came forward.
Ms Murdock: Yes. If you look at the act portion, not the bill, of what exists, the language uses the word "shall" and it makes it seem like you have to do it. But by clarifying it, then the board "may" determine that assistance is required and it shall be up to six months, so it isn't an automatic six-month extension, as the Ontario Hospital Association stated when they were here.
Mr Carr: I guess continuing on with it isn't going to do too much good for the people who -- and the legal clinics of eastern Ontario as well took a look at it. I know what you're saying, referring back to the act and so on, but it's these very people. It is a legal question. The legal clinics of eastern Ontario were one of the people that suggested that this subsection be struck out.
I'm just wondering why we get so much confusion between legal people on the ministry staff and people who are out in the legal clinics of eastern Ontario who came forward and said, "This is what we'd like to see happen with the bill." I understand what you're saying, but that isn't what the public was saying. I understand how you're trying to explain it, but that is not what we heard in the consultation. That is all I'm saying.
Ms Murdock: There weren't very many groups that came before us that focused on these sections. The mandatory nature is removed and it makes it more discretionary, and I think that is beneficial, actually, for those workers who require it. It'll be evident, and the rehab counsellor will be able to make that determination.
Mr Mahoney: As I recall, a lot of the concern around this entire concept is whether or not workers' compensation is income replacement for an injured worker and rehabilitation and return to work either in a modified way or if it has become an educational system and a total job replacement system.
What we see happen and what I think the management people who pay the premiums are concerned about is that they see probably it's more society's role at large to determine whether or not they're going to teach a heretofore illiterate individual who happened to get injured on the job how to read and write.
Is that the responsibility of a workers' compensation insurance plan or is that the responsibility of the government etc, the taxpayer at large? When you start defining voc rehab as including training, as it does in subsection (11), to include language training, general skills upgrading, refresher courses, employment counselling, including job-search skills etc, it's a little bit of a catch-22 because you want to get them back to work, and if you get them back to work, presumably you get them off compensation, although not always, as we well know. But that is the principle.
On the other hand, I think what we were hearing from the groups when they appeared here, as I recall, specifically in London, was that they were saying: "We don't have any problem with you teaching somebody English who can't speak English, but why should that be funded by the compensation insurance program? If you want to retrain them and see that as some role of government, go ahead." But you see, the income for this particular system is generated from a specific sector, ie, the business community, the management, whatever; the businesses' pay they generate is the only place this thing gets money. They don't get money from the taxpayer or from the government.
I think that is the reason Mr Carr was saying, "Why are people asking that this section be deleted?" I think what they're saying is, "Be specific in your training." If a plumber gets injured on a construction job, rehabilitate those individuals so that they're back to work at that job. But it's not our responsibility to teach them a whole new job or to teach them new skills that aren't even related to the job at which they were injured. I recognize that it's a catch-22, because if you just leave them sitting around and do not give them new skills with which to seek employment, then the burden on the compensation system becomes even greater.
I suspect that the royal commission -- I don't know if they've set dates or anything -- would look at this exact issue of whether there should be some form of universal accident disability. With all due respect, if you folks are still the government, which I would hope is not the case, universal disability is probably the hidden agenda behind that particular plan in any event.
But the real issue in this series of sections is whether or not the workers' compensation system should be a fix-all for all deficiencies in educational or vocational training. I think it is. I think it has become that and that injured workers, when they know, particularly in a recession -- I mean, think about what happens. It's not the workers' fault. They get injured; they go off on compensation. The company retools or reorganizes, and in the tough times, in the recessions we've experienced, the jobs disappear. All of a sudden the worker's in a position to go back to the job, but the job doesn't exist. So what are you going to do? You train them for another job. Does that job exist?
1630
The member for Sudbury will well remember, as I remember her impassioned pleas on Bill 162, when she told us that if she had an opportunity, she and her government were going to tear that bill up and abrogate the deal, which of course didn't happen. But I shared the concerns that the member spoke about at that time about deeming and the phantom jobs, and in fact have recommended in our report that we eliminate that because I think it's unjust and it's one of the things that I think injured workers get most upset about.
But it's a much broader issue here. That is, frankly, why I think we were hearing deputations as to why these sections should be deleted. You delete them, though, and you wind up with other problems that you have to deal with.
I hope the government, I hope that the royal commission or, if they're not still around after the next change in government -- this is an area we're going to have to look at and recognize that a business-premium-supported insurance program should not be solely responsible for all this kind of training and funding of it, and maybe there has to be a new partnership arranged between government and business in paying for this kind of thing.
Ms Murdock: The royal commission is mandated to look at that very issue, and so it isn't a hidden agenda, I would point out, Mr Mahoney.
Mr Mahoney: What, universal? You're supporting universal?
Ms Murdock: Yes. The other thing is that subsection (11), which has raised this whole discussion, was brought in under Bill 162. So the whole issue, I presume, when 162 was presented when your party was the government, must have been discussed, the whole concept of responsibility of employer, whether their employee happened to be illiterate or not. I know a lot of focus was put on the deeming provision, but I'm sure that whole subsection (11) issue was not left without any discussion.
That, in our view, is not what is important here. What Mr Carr is mentioning or wants removed is the whole aspect of having the worker have assistance in seeking employment should the company no longer exist after rehabilitation has occurred, should that job no longer be there. If he has nothing to go back to, then he requires assistance. I think that's fair under any kind of insurance scheme.
Mr Mahoney: I would agree with that except for the argument and the question that comes from the people who say this is where you have to get really fundamental in defining what is the workers' compensation system. Is it a social safety net such as an unemployment insurance program -- even that has a time limit on it -- or a welfare program? Or is it an income replacement insurance program and a plan that rehabilitates the worker from the injury, physically rehabilitates the worker? Or is it in fact a job-seeking -- you know, in times of recession, the jobs disappear. That's the point.
Even unemployment insurance, which supposedly is designed to help people seek replacement jobs because their job is definitely gone -- that's why they're on UI, so it's designed to help them seek new employment -- even it has a sunset on it. It's 42 months, I think, the time frame, and it's over. So there are some definitive --
Mr Len Wood (Cochrane North): Did you say 42 months?
Mr Mahoney: What's the UI time frame?
Mr Wood: It's not 42 months.
Mr Mahoney: No, what is it?
Interjection: Weeks.
Mr Mahoney: Weeks. I'm sorry. What did I say? Months? I'm sorry. Weeks. Yes, that would be nice.
Ms Murdock: The Liberals at the federal level will make it less, if possible.
Mr Mahoney: Pardon me. I meant to say 42 weeks. Thank you.
Ms Murdock: At least they're sure looking like they're making it less.
Mr Mahoney: But the point is that there is a definitive time frame on that of 42 weeks, when it's over. So it is more clearly defined, and I think that's what the deputations that were coming before this committee were saying. This is wide open, open-ended, and there are no limits on how far you can go with this thing. So whether by design or by accident, it has become more than simply an income replacement system. I think that's very clear.
The question to ask is, when you're paying 90% of net pay during the time of the injury and the rehabilitation versus 55% or whatever percentage it is on UI, with a time limit -- 90% for a long, long time -- that's what they're concerned about. It's got to be justifiable, affordable. The system has to be able to survive financially and there have to be some limits on the thing. That's what I heard the people saying when they were coming before this committee.
Interjection.
The Chair: Further discussion?
Mr Mahoney: Go ahead, give me another idea to talk about.
Ms Murdock: You qualified your own statement when you said "vocational rehabilitation" and then you said "physical rehabilitation," and I guess it comes down to a difference: Our viewpoint is that rehabilitation is the whole person, and it isn't simply improving, if possible, the physical injury of the worker but to make sure that the worker has work. He or she did not ask to be injured on the job, and they deserve to be looked after if they are.
Mr Mahoney: Every time somebody questions something about the workers' compensation system, I'm surprised you haven't started going on about workers dying here, because that's what happens: You bring out that they didn't ask to be injured on the job, and you bring out all of this stuff.
Ms Murdock: No, no. Please, Mr Mahoney. In all the years that I have been the PA here I've never done that, so why you would accuse me of that is beyond me.
Mr Mahoney: I'm sorry, the point of the matter is that the business community is very concerned that this is becoming an open-ended social safety net instead of an insurance plan. I'm simply trying to point that out.
Ms Murdock: Well, we could always go back to the days of suing.
Mr Mahoney: Mr Carr said he couldn't understand why there were differences between the legal department, and he understood the explanation and why the business community was upset. They're upset because they see this becoming, particularly under the NDP, the potential for an open-ended social safety net instead of an insurance plan, which is what it was originally designed to be.
The Chair: Further discussion? Seeing no further discussion on Mr Carr's motion, all those in favour? Opposed? Defeated.
Ms Murdock: Mr Chair, in regard to the schedule from Bill 43 under the Regulated Health Professions Act, I want to correct the record. I had said that there were 26, and there aren't. Under this list, there are 21 self-governing health professions. I just wanted the record corrected.
Mr Mahoney: Thank you, to the clerk, for getting us the list so quickly.
Ms Murdock: Yes.
The Chair: We have a PC motion again. Mr Turnbull.
Mr David Turnbull (York Mills): I move that subsection 53(13) of the Workers' Compensation Act, as set out in subsection 9(7) of the bill, be struck out.
This is in line with our reasoning on the previous motion, which you have struck down. The most problematic of this whole section is subsection 53(13), so this particular motion is more focused than the previous motion and goes to the very heart of the concerns that were expressed by the employers' community in that the provision could be abused and misused.
The Chair: Further discussion? Seeing no further discussion, all those in favour of Mr Turnbull's motion? Opposed? Defeated.
On section 9: All those in favour of section 9 as amended? Opposed? Carried.
A PC motion creating a new section, 9.1, Mr Carr.
Mr Carr: I move that the bill be amended by adding the following section:
"9.1 The act is amended by adding the following section:
"Board to assist employer
"53.1 On the request of an employer, the board shall assist the employer in developing return-to-work programs, accommodation programs and rehabilitation programs to assist in re-employing an injured worker."
1640
The amendment is designed to ensure that at the request of the employers the board would assist the employer in developing return-to-work programs, any accommodation programs and rehabilitation programs to assist in re-employing the injured worker. Of course, that's essentially what it says.
There were some groups that came forward. The Employers' Advocacy Council spoke to this issue during the public hearings. I guess the reason was that a number of presenters expressed concern that there's no provision to ensure that programs offered by the WCB are effective in meeting the objectives of returning the individual to the point of employability.
As we all know, having sat on some of the hearings as we travelled, that seemed to be the consensus of what everybody is looking at the WCB to do. I think at almost every stop we heard about it being the objective to get the employee back to work, and this I believe is an amendment which would be helpful in meeting that objective.
There is no provision right now to ensure that some of the programs offered by the WCB are effective. Certainly there has been some criticism of some of the programs. This amendment I believe will go a long way to improving this bill and that's the spirit in which it was brought forward.
Ms Murdock: Just for the record, the bill, in our view, does that in a less mandatory way under subsection 9(3). So we will not be supporting this.
Mr Carr: Obviously you agree with the objective then, so why are you saying "in a less mandatory way"?
Ms Murdock: I probably stand corrected on that -- "On the request of an employer." We're saying, "The board shall provide the worker and the employer" assistance in vocational rehab, whether that be programming or whatever, if the board sees the appropriateness of it.
In some instances the employer may have a phenomenal vocational rehabilitation program in place. We heard presentations during the three weeks where some employers have worked very hard in instituting those programs, and then in other places they don't have any, so the board may not feel any need to go in, or it may simply be modification of a workplace, which allows vocational rehabilitation to take place. Their vocational rehab counsellor could feel it appropriate to go in there.
We think that our bill, in subsection (3), does that in that it's mandatory and that it "shall provide" it upon looking at the situation and not upon a request.
Mr Carr: What would the reason be then for the employers saying they'd like to have the opportunity to request of the WCB --
Ms Murdock: But they can do that now, Mr Carr.
Mr Carr: In what way? How can they do it now?
Ms Murdock: There are provisions, such as even in the appeal process, where employers can appeal as well as workers can appeal right through the final end. It's the same thing if an employer wants some assistance from the board to develop a vocational rehab program or a modified work program. The board is already in place to do that. "On the request of the employer," as your provision is suggesting, they can do that now.
Mr Carr: Yes, but through the appeal process, which is long --
Ms Murdock: I used that as an example, as one section of the act, that everything in the act pretty well is available to both employers and workers. We had some discussion during the hearings about penalty provisions under the voc rehab, in which the worker was penalized but the employer wasn't. That's about the only provision where it isn't equally treated.
Mr Carr: If the provisions are there and you're already doing it now --
Ms Murdock: No, no. What I'm saying is, on the request of an employer -- if an employer were to call the board under the existing legislation, they could already get this. If the employer asks for it, just as if the worker asks for vocational rehab --
Mr Carr: If they can ask for it and get it, then why couldn't it be enshrined in the legislation, Bill 165?
Ms Murdock: Say this again?
Mr Carr: You're saying they can already get what I'm asking for in our amendment now.
Ms Murdock: Yes. What I'm saying is, if an employer right now calls the board and says, "We would like some assistance in developing a vocational rehabilitation program; can you send someone to discuss it or can we sit down and talk about it?" that can be done. But our section isn't on the request of anyone; it is that if the board feels that it's appropriate to go in and discuss the whole aspect of it, they can do so; it's not on the request of.
Mr Carr: You just said they can request it now, so I don't see what the trouble is in putting it in the legislation through this amendment.
Ms Murdock: I guess it comes down to if they don't request it, but the board feels it should be there, then they should have the ability to at least make -- particularly now that under our Bill 165, vocational rehabilitation is integral to the whole aspect of workers' rehabilitation.
Mr Carr: But it says, "On the request of the employer."
Ms Murdock: Yours does.
Mr Carr: Yes, right in there, so what they're basically saying is a lot of the employers -- and it may be happening now, if you say it is -- they'd just like to have it enshrined to ensure that if an employer requests, the board would assist the employer in developing a return-to-work program, an accommodation program or whatever; the board would comply. If they are doing it now, then I don't see why you couldn't agree to this amendment.
Ms Murdock: But by putting language in legislation that says, "On the request of an employer," the flip side of that is that if the employer doesn't request it, the board doesn't provide it.
Mr Carr: What happens now if they don't request it? It's up to the option of the board.
Ms Murdock: No, no. But it will be after Bill 165 and our provision is passed.
Mr Carr: Okay, but do you know what basically they're saying? They want to have some checks and balances here. Right now, as you sit here, you assume the board is going to do the right thing and you have to forgive some of the employers not to be non-partisan because they're mad at governments of all political stripes, not trusting them, and that's why this amendment was brought forward, to enshrine in the legislation that on the request of the employer they could get this action taken if they're requesting it. It's very simple, and to be able to --
Ms Murdock: What happens if the employer doesn't request it?
Mr Carr: Then what happens now would apply.
Ms Murdock: There's no provision in the act at the present time for the rehab counsellor to go in and do it.
Mr Carr: That's why this provision is needed then, so we can ensure that if an employer does request, action will be taken by the board. That's all they're saying. It's very simple.
Ms Murdock: Forgive me, and with respect, I don't think that is what you're saying, because "On the request of an employer" changes that to mean the employer is to request it before the board shall do the assisting. I'm saying that this shouldn't be only based on the request of the employer, although that's certainly beneficial. I don't think it should be the only requirement, but that's what yours is saying.
Mr Carr: What we're saying is that -- and it could be other things as well if you say it's happening now through various different means, then this doesn't preclude it from still happening. This is just saying --
Ms Murdock: Yes, it does.
Mr Carr: You mean, if this goes through, then the board wouldn't do it on their own, is that what you're saying, even though they're doing it now?
Ms Murdock: No, I'm saying that if this were to go through and ours were not -- I would presume that's what you're suggesting --
Mr Carr: No.
Ms Murdock: They're adding to it.
Mr Carr: Yes.
Ms Murdock: You're saying that by adding this you're asking -- then when an employer requests it. As I stated at the beginning of this, they can do that already. Perhaps I'm not understanding this clearly, but I don't see the need to restate it when it's already being done, or capable of being done.
1650
Mr Carr: The reason they want it restated is that they'd like to see it in the bill. That's why they want it restated. They'd like to see it in Bill 165, to make very clear the intention that if an employer requests the board, then it shall be done. That's all they're saying. You have to forgive groups if they sometimes don't trust governments for whatever reason. It may already be being done and that's all they're saying. If it's already being done, then let's put it in the bill. But we won't continue on, because obviously we're not making much headway in convincing you.
It just seems very simple to me that if it's already being done, then let's put it in there, and if you have no problems with the concept or any technicalities of the way it's written, then why not put it in there?
Ms Murdock: I graduated from law school and I don't want to say anything derogatory about lawyers, but when you put that kind of language in, you automatically give the ability to argue that it's only in instances that it's on the request of the employer, and that is not the intent of this bill. So as soon as that sentence is in there, you've got people who will go to appeal hearings and argue that; because that language is there, then you've precluded the other side.
Mr Carr: What do they argue now, then?
Ms Murdock: It isn't there. You're able to do that and there isn't any specific language that prevents it.
Mr Carr: Certainly Bill 101 doesn't mean -- anybody knows that -- putting something in doesn't preclude everything else.
Ms Murdock: Sorry, but I disagree with you. I think that if you had attended at any WCAT or hearings officer level or even a courtroom, for that matter, that's one of the reasons why, for instance, that I on a personal level have always been opposed to having a purpose clause and a preamble. As soon as you do that, you give lawyers all kinds of language ammunition and it allows for a lot of confusion. So I would say that on that basis alone I wouldn't agree to that.
Mr Carr: I'll agree with you that any time you give more language to a lawyer you allow for more confusion.
Ms Murdock: It's true, though.
Mr Carr: I guess I'm coming from the standpoint that if you want to be clear about something and you want to avoid legal problems, then you spell it out. I guess as a lawyer you're telling me the more you put in, the more you give a chance to argue.
Ms Murdock: Yes.
Mr Carr: I'm just saying to you, then, what do they argue now? If all of a sudden the board doesn't, then what's the rationale for the argument now when we go to some of these discussions? At the present time there's nothing in there to say that the -- or actually you're saying the employers are --
Ms Murdock: Have the ability of getting it, yes.
Mr Carr: -- have the ability now. I'm just saying that it seems -- maybe it's me -- silly to add something to clarify and then to not want to put it in because we'll assume that the lawyers will make it more confusing. I don't buy that rationale.
Ms Murdock: We're going to agree to disagree, but I would say that specifically having the language "On the request of an employer" in there automatically precludes it; that without the request you don't get it.
Mr Carr: Mr Chairman, I won't continue on because --
Ms Murdock: No. I agree.
Mr Carr: -- I know I usually don't win the battle even if I continue on. So there's not as much a point. But, like you say, I guess we're going to agree to disagree. It was offered in light of what the Employers' Advocacy Council had wanted put in there and I just thought it was something we could live with. But obviously we're going to lose the vote, so we probably should continue on, unless anyone else would like to speak to it.
The Chair: Further discussion? Seeing no further discussion, all of those in favour of Mr Carr's motion? Opposed? Defeated.
On section 10, Liberal motion, Mr Mahoney.
Mr Mahoney: I move that subsection 54(11.1) of the Workers' Compensation Act, as set out in section 10 of the bill, be struck out and the following substituted:
"Same
"(11.1) On its own initiative, the board may determine whether the employer has fulfilled the employer's obligations to the worker under this section, if the employer's accident record for the most recent year for which records exist exceeds by more than 15% the industry average for that year, as determined by the board.
"Same
"(11.2) If an employer was not an employer to which this section applies in the most recent year for which accident records exist, the board, on its own initiative, may determine whether the employer has fulfilled the employer's obligations to the worker under this section, if the employer's accident record for any six-month period exceeds by more than 15% the industry average for that period in the most recent year for which records exist, as determined by the board."
This is, very simply, an attempt to put some benchmarks in. The thing we heard at so many of the hearings we had was that people were somewhat frightened by the unbridled, open-ended ability of the board to make determination. We heard a lot about the fears around dismantling of the NEER program and concerns also that under this act the minister of whatever party will have complete control of the ship of state, so to speak, for a period of one year following the act. So there was a request, a desire, by the business community to have in place some guidelines that it could understand.
The other thing that does is provide for incentives, I think, for the business community to reduce its accidents, which ultimately I'm sure is what all of us in this place would like to see happen, but it puts in place some targets, some goals. Hopefully they would do better than is even indicated here, but it gives them some clear guidelines to follow. So we supported that.
We think that either way in this regard there is a certain amount of cumbersomeness, I guess you could say, as to whether or not it be simply left to the initiative of the board, with no benchmarks or guidelines to follow, or if you indeed put in place a percentage guideline of the industry average that at least gives you something to measure.
All of those statistics are kept by the board, so it's not like we're just pulling something out of the air. Everything's put in place and there would be a measurement stick, and if the decision was made without following that guideline, then there would at least be some recourse by the company. So that's why we've done this, and of course the second one would identify new employers where records did not exist and allow for a six-month time frame to be used.
Mr Carr: The whole problem with this section is that it gives the WCB on its own initiative, without any triggering mechanism as a complaint, the sweeping power to investigate whether an employer has fulfilled its obligation to a worker's vocational rehabilitation, and there was a tremendous amount of concern that was put forward. I think the Ontario Hospital Association, the Board of Trade of Metropolitan Toronto and the Employers' Council on Workers' Compensation had some major concerns that were put forward, and I think this particular amendment adds some clarification. I'm hoping we'll get some rationale from the parliamentary assistant if we're not going to proceed with it, just a short one, and if not, maybe she'll support it.
Ms Murdock: I can give you my rationale; I don't imagine it's going to be satisfactory to you, however.
Mr Carr: You never know.
Ms Murdock: Our section 11 is an amendment to the existing section 11. If you look at section 11, a worker may apply to the board for a determination whether the employer has fulfilled the employer's obligation. We were asked during the public hearings for clarification. We think that our section 11 in the bill does that, the clarification. I think that the Liberal amendment not only makes it much more complicated but sets up a number of potential consequences that would be problematic later on, and I'm not prepared to support the amendment.
The Vice-Chair (Mr Len Wood): Any further debate? All those in favour of the Liberal motion? All those opposed? The motion is defeated.
Shall section 10 of the bill carry?
Mr Mahoney: Mr Chair, maybe we should do an omnibus motion here to put the rest of these and take the same vote and let's go and do something that's accomplishing something. What do you think? Take this into the Legislature?
The Vice-Chair: All those in favour of section 10? Opposed? Motion carried.
Ms Murdock: Could we have a five-minute recess, please, Mr Chair?
The Vice-Chair: This committee will stand recessed until 5:05.
The committee recessed from 1701 to 1709.
The Chair: I'd like to call this committee back to order. We now have a government motion on section 11.
Ms Murdock: I move that the portion of subsection 56(1) of the Workers' Compensation Act preceding paragraph 1, as set out in section 11 of the bill, be struck out and the following substituted:
"(1) There shall be constituted for the government of the corporation and for the exercise of the powers and performance of the duties of the board under this or any other act a board of directors composed of the following members:"
The Chair: Discussion?
Ms Murdock: Actually, we inadvertently omitted this from the subsection, so we're correcting it.
Mr Mahoney: Just help me, please. Does this replace subsection 56(1) on page 3 of the bill, Mitch? Is that what that's doing?
Ms Murdock: Yes. "There shall be constituted" instead of "The board shall be governed." Just the beginning part.
Mr Mahoney: Could we just get an explanation as to why, for the exercise?
Ms Murdock: It's to clarify that the board of directors is responsible for the government of the board and for the duties of the board as provided under the act, and the reference to "the powers and performance of the duties of the board" as stated in the act, which we're correcting in this amendment that we're putting forward today, which is not stated in the bill.
Mr Mahoney: Should it not read, "There shall be constituted for the governance of the corporation" rather than "the government"? Am I being picky?
Ms Murdock: I'll let Mitch explain it to you.
Mr Toker: The wording in the motion matches the current language used in subsection 56(1), which begins, "There shall be constituted for the management and government of the corporation and for the exercise of the powers and performance of the duties of the board."
Mr Mahoney: I can see where it comes from, because it matches. It still strikes me it's wrong in both cases, because what you're really referring to is governance. But maybe I'm just being picky in the English language.
The Chair: Seeing no further discussion, all those in favour of Ms Murdock's motion? Opposed? Carried.
We now have a Liberal motion.
Mr Mahoney: I move that subsection 56(1) of the Workers' Compensation Act, as set out in section 11 of the bill, be amended by striking out paragraph 1 and substituting the following:
"1. Four directors representative of workers, including one member of the Ontario Network of Injured Workers, to be appointed by the Lieutenant Governor in Council."
If you're reading this motion, I would ask you to note a change. I would point out that the words "Union of Injured Workers" should read specifically "Ontario Network of Injured Workers."
The Chair: Discussion?
Mr Mahoney: Just that if there was one thing I heard repeatedly during the outreach tour and all of the subsequent meetings and consultations that I had on workers' compensation reform prior to us releasing our report, and continued to hear at the hearings of this committee and have heard from people such as Karl Crevar and others who have been dedicated to finding a solution to the problems of injured workers, it's that you've got to talk to the people who live and breathe this system and who have to work within the bureaucracy that exists to give you clear-cut advice on how the solutions to this situation can be arrived at. We've got to involve injured workers in giving advice to the board and clearly laying down the policies.
I know that in the past we've had representatives of injured workers sitting on the board at the pleasure of the Premier or the Minister of Labour. Steve Mantis was a representative who appeared before us in Sault Ste Marie, and I know he's done a lot of good work. But I think it's important that we put it in black and white, we put it down and we make a firm commitment and we be very specific, because I believe this organization is highly respected within the injured worker community, within organized labour, and that indeed they can bring a lot to the table.
I think it's important not only that we take advantage of that, but that then has them sort of buy into the process as well. So it will work both ways. We will have an opportunity to communicate. The board will have an opportunity to communicate decisions directly to the injured worker community, and the injured worker community, which has such a huge stake in this entire process, will feel that it has a voice sitting on the board and will have someone at the table.
I would hope this would be unanimous, all three parties, so that we could send a message to the injured workers that we've heard them and that we specifically recognize that they need to be identified really separately and in a very special way. That's why we've put this motion forward.
Mr Steven Offer (Mississauga North): I would like to hear the response by the government to this amendment.
Ms Murdock: As we all know and we heard multitudinous times during the public hearings, these whole sections were devised by the Premier's Labour-Management Advisory Committee, and we're abiding by what they decided.
Mr Mahoney: Well, where else are you doing that?
Ms Murdock: See, now, that's where you and I disagree on this, because this whole deal is --
Mr Mahoney: You're telling me that you're not prepared to support this amendment because the PLMAC process did not recommend it? Is that what I hear you saying?
Ms Murdock: I think that the four directors representative of workers can include that, absolutely, but I --
Mr Mahoney: Can include what?
Ms Murdock: Well, it can include injured workers as well as others, as long as they're workers. So I don't think it precludes injured workers or I don't believe it precludes the Ontario Network of Injured Workers either.
Mr Mahoney: I'm not asking whether or not it precludes; obviously it does not. But it does not include; it does not specify. You heard many, many times during the committee hearings that injured workers want you, or whoever subsequent to you, and the Workers' Compensation Board to listen to them because of the firsthand experiences they have. A worker who has never been injured and has never been through the process would not have the same understanding as a worker who indeed had either been injured or who had worked for and on behalf of injured workers, such as the Ontario Network of Injured Workers has done.
I would think it's safe to say that certainly most, if not all, of the people who wind up working in organizations like this have wound up there as a result of an experience coming from an injury on the job and the problems they've had in dealing either on their own behalf or on behalf of members of their family or on behalf of members of their local or whatever in dealing with the Workers' Compensation Board. So to hide behind the excuse that the PLMAC didn't suggest this is absolutely mind-boggling.
There are many, many areas in here where you did not agree with the PLMAC. Gord Wilson came forward and said this mirrors the PLMAC. I've often said it must be one of those mirrors they use at the Canadian National Exhibition that makes me look tall and slim, because it does not mirror the PLMAC agreement in any way whatsoever, and I find that response to be an absolutely feeble response.
Why don't you just come out and say that you don't want to specifically name this group to sit on the board? I'd accept that as a defence or as a position that you're taking on behalf of the government, that you don't want the Ontario Network of Injured Workers to have a place at the table. If that's what you're saying, say it. Don't tell me that it's the PLMAC that won't allow you to go for this amendment. Absolute nonsense.
Ms Murdock: Well, when you look at it, it doesn't specify small business, it doesn't specify construction, it doesn't specify mining or public sector workers. It doesn't specify anything, and in legislation I think that's wise.
1720
Mr Offer: You're right about small business and mining and all of those things. The problem you have is when you take a look at the purposes of the act, the purposes that you devised. The purpose of the act is, in the government's own words, "to provide fair compensation to workers who sustain personal injury."
It goes on and says something else: "(b) to provide health care benefits to those workers." Those are injured workers. "(c) to provide for rehabilitation services and programs to facilitate the workers' return to work." Those are injured workers. "(d) to provide for rehabilitation programs for their survivors." We're talking again about the injured worker issue.
So in your own words, the purpose is all geared to the injured worker. You've just passed an amendment which says that the governance of the act is going to be by a board of directors. You had to change the wording; that's fine. But all of the purposes are geared towards the injured worker. How can you not have on the board a representative of injured workers? How is it?
I don't care what your politics are. I don't care what the feeble excuses are, but how is it, when there is an act that has as its sole purpose -- I don't care how many subsections to the purpose you have -- assistance to injured workers and has a board which governs how that assistance is to be meted out, that you don't have a representative of injured workers?
How can you in any way, shape or form -- I don't care what party you're from, I don't care what politics you profess to support -- how is it that an act which is geared toward the injured worker does not have on the board an injured worker? How is it that people can have any sense of contentment that the board is going to act in the best interests of injured workers, when the government is specifically excluding as of right?
Ms Murdock: We're not excluding as of right.
Mr Offer: Oh, don't tell me that, because you are. You are excluding as of right an injured worker on the board. You are saying that an injured worker does not have as of right a position on the board; rather they are going to be at the behest of someone else. If someone happens to choose one, well then they're on. But if they don't, they won't be on. So there is no as of right.
Putting aside the politics and all of that stuff, the point is that injured workers rely on this act. The purpose of the act is geared towards injured workers. How is it that we can take away or not give to the injured workers -- and let them worry about how they're going to get that representation -- that one can justify that they should not have the right to be on the board that governs an act which has as its purpose solely injured workers in this province? It is absolutely ludicrous not to agree with this amendment. It throws the whole bill that's before us into just total disrepute.
Mr Mahoney: Not to mention the comments made in the past that you would support such a thing.
Mr Offer: How can you justify not allowing people who are going to be the primary purpose of the legislation the opportunity to share how this act and how its evolution should take place, a position on the board? How do you guys do it? I now point to the members of the NDP government. How do you do it? How do you not support this amendment? How do you say to people that in the act that was supposed to be for their own purpose you're not going to allow them a position on the board? How do you in your own mind, casting aside party politics, justify your voting against this amendment? Forget about the parliamentary assistant. How do you do it? How do you do it, Shelley?
The Chair: Mr Turnbull.
Mr Turnbull: I'm somewhat surprised that the government isn't supporting this amendment. We heard from successive presenters at the hearings that injured workers wanted to have a say at the table. They don't want to take over the board. They just want to at least have some say at the table. It seems appropriate that the very people we're ensuring should have some input, much in the same way all interested parties have a right to sit around a table and discuss their grievances. So we will be supporting this amendment. Indeed, Mr Chair, I would like to have a recorded vote on this issue.
The Chair: So noted. Further discussion? Seeing no further discussion, all those --
Mr Mahoney: No answers from the government to Mr Offer's questions? I'm appalled.
The Chair: All those in favour of Mr Mahoney's motion?
Ayes
Mahoney, Offer, Turnbull.
The Chair: All those opposed?
Nays
Martel, Murdock (Sudbury), Sutherland, Waters, Wood.
The Chair: Defeated.
We now have a government motion. Ms Murdock.
Ms Murdock: I move that paragraph 3 of subsection 56(1) of the Workers' Compensation Act, as set out in section 11 of the bill, be amended by striking out "paragraphs 1 and 2" in the last line and substituting "paragraphs 1, 2 and 4."
The Chair: Discussion?
Ms Murdock: It's a housekeeping matter.
Mr Mahoney: Could either the parliamentary assistant or the staff tell us what it means just so we're not getting tricked into something here?
Ms Cohen: This is just correcting an omission in the bill. In paragraph 3, the two directors representative of the public are appointed on the recommendation of the four directors representative of workers and four directors representative of employers, and inadvertently we left out the two vice-chairs representative of workers and employers in paragraph 4. The policy goal here is to have the two directors representative of the public be appointed on the recommendation of all the other directors. We simply left out the reference to paragraph 4 inadvertently.
Mr Mahoney: So of the two other people who will be appointed, one will be appointed by the labour caucus and one by the management caucus, or will there be a consensus by the two groups on two people? How's that going to work?
Ms Murdock: That's one of the reasons I know we've heard a lot about the year that the government is going to have control of the Workers' Compensation Board, but the whole point is so that the members of the board can sit down and work out their own protocol as to how those things are going to be done. The idea also in the discussions has been around joint recommendations, so that will be decided by the players themselves.
The Chair: Further discussion? Seeing none, all those in favour of Ms Murdock's motion? Opposed? Carried.
1730
Mr Mahoney: I move that section 56 of the Workers' Compensation Act, as set out in section 11 of the bill, be amended by striking out subsection (2).
The Chair: Discussion?
Mr Mahoney: I don't really have anything to add.
Ms Murdock: The WCAT.
Mr Mahoney: Yes, I'm sorry. Thank you very much, to the parliamentary assistant. I was reading the other subsection (2).
The concern we have here is surrounding WCAT and the process that currently exists in the board. It's in some instances perception, but also in some it's reality. You have an appeals tribunal that people would tend to think is independent and would have an ability to make decisions interpreting WCB policy on its own. Unfortunately, what's happening is that many of their actual decisions become policy. I guess because of the scope of some of the issues they have to deal with, they're seen as a group that almost goes beyond and above the powers of the board and sets new policy as a result of some of their decisions.
It almost puts them in a position of a conflict of interest to have them there as a non-voting member. I don't support non-voting members in any scenario, virtually, of any board. If you want a separate advisory group on appeals to advise the board in some way and have professionals, staff, bureaucrats, someone like that advising the board of the relationship between an appeal and their policy as to whether or not perhaps they've superseded their mandate by making a decision -- think of it in terms of a court of law, where a court of law would make a decision on the law that was before them, hearing arguments from both sides, and would then make a decision. They should not -- although I suppose they do at times, but they should not -- be writing the law sort of on the spot, ignoring the policies of the lawmakers. Unfortunately, the appeals tribunal clearly has been doing that and has the right to do that.
We would actually rather see WCAT set up under separate legislation as quasi-judicial, with its own mandate clearly laid out. In fact, we believe the appeals process should be simplified such that you get to the WCAT appeal hearing quicker. They should be fast-tracked and get the cases in there much quicker. I think the comment I heard at one of our outreach programs by some lawyers who deal in appeals is they see WCAT as being the light at the end of the tunnel, and they'd like to get their clients to WCAT as quickly as possible.
I could see a good news-bad news thing there. They probably like to because they realize they might get a decision that will be somewhat irrespective of the position of the board and they're not hamstrung, whereas the decisions made internally within the board would clearly have to follow the policies of the board, but WCAT does not have to do that.
I don't think they have any place sitting on the board. They should be a court. I recognize they would not be set up in a judicial fashion, but they should be quasi-judicial. I, for example, do not support MPPs interfering in that particular process. I think it should be equally as distasteful for an MPP to go through and represent an appeal process, which I know many members do. I do not. My staff will certainly inform the injured worker of what that process is.
Interjection.
Mr Mahoney: Mr Mills is saying he doesn't do it either, but many do, and I think it's wrong, because whether we want to admit it or not, there is always the potential for the appearance of influence and that kind of thing to be taking place at the hearing level.
We hear about members writing letters to boards or cabinet ministers influencing decisions of boards at all levels of government. I don't mean that in any partisan way whatsoever; we've heard about some of that recently in Ottawa. I frankly think that's wrong. I don't think that kind of thing should be allowed.
When you have a system where you have conflict-of-interest guidelines -- we're currently dealing with amendments to that -- for members, you have premiers putting in guidelines -- David Peterson brought some in; Bob Rae has brought some in -- one of the sorts of underpinnings of those guidelines and that whole principle is that there should be rules certainly for cabinet ministers not to unduly influence a body making a decision that could result in some kind of financial reward for an individual citizen, taxpayer, company or whatever. I think the same thing applies here.
I would like to see major changes, and obviously they're not going to come forward in this bill. Again, the opportunity for that could come up with the royal commission or, if the royal commission does not survive the change to a new government, it could come up in a major reform package which would clearly set WCAT out as a separate entity.
I would tell you -- frankly, I think this is very important because of the structure of the board -- the story of the person who appeared before our outreach tour committee in Thunder Bay who made his living running a bridge repair company. He used, and I often use his example, the example of when you are repairing a bridge, you don't start at the bottom because when you start chipping away at the foundation the whole thing may come tumbling in on you.
He said the same thing is true of reforming WCB, that you don't start at the bottom, that you've got to start at the top, starting at the top with the depoliticization of the appointment process, the establishment of the board, the multistakeholder concept of the board. The structure that you're going to put in place for the governance of the workers' compensation system is critically important.
As a result, that's why we argued, and my colleague Mr Offer argued so passionately, for the inclusion of an injured worker representative on the board. I would also argue, in a reverse scenario, not to include the chair of the appeals tribunal on the board but rather to get people who are clearly stakeholders.
WCAT should not be a stakeholder. They should be a court of appeal, a different track for an injured worker or their representatives to take, and should be seen in the purest democratic sense as a group that is over and above any kind of influence, ie, sitting around a boardroom table listening to workers and listening to management representatives arguing on behalf of their particular groups in a bipartite system such as this one.
Why would we want the chair of this appeals tribunal there trying to be influenced by what goes on at the board? Their responsibility should be, it's very clear to me, to receive the policies that are arrived at after the debates take place at the board, presuming there are debates that take place at the board, and the policies are issued that say you will offer compensation for these injuries, to set out the benefit levels and all of the things that drive the administration of the board, so that when you as an injured worker go before them you say: "We think we've been unfairly treated. We were not compensated properly. They didn't recognize our injury as being an injury that occurred at work. We have evidence to show that it does. We have precedents to show that other workers have been awarded on this basis and we think we're being discriminated against and we want you, Mr or Mrs or Ms WCAT Chair, to make a decision that's based on the policies and the guidelines and the precedents that exist in law under the WCB."
1740
We think that kind of structure would be far superior, would make common sense. We think it would do a lot, frankly, to help MPPs' offices, which is not the motivation but certainly a side benefit out of it, and also to clarify for all elected representatives and for all people who run for office -- because particularly in the government party but in all parties we wind up with candidates who come out of the labour movement and who come out of injured workers -- that your role is to guide the injured worker into the system, to make sure the doors are open to allow the injured worker to go through the process, to perhaps refer them to the office of the adviser of the injured worker or the worker adviser, or in the case of the employer, to the employer adviser, and to make sure they know all of that. But you are not allowed to unduly influence the decision that might be made at any particular level.
I think it's more or less a given that there may be a perception out there in the public that because you're an MPP, because you're an elected official, you can just fix things for people, but the reality is that we know those days, if they're not gone, certainly should be gone and that that's not the proper role of an elected representative but rather one to guide. So that's an aside from the thing.
But this is the place to start. We start at the top with the makeup of the board. The next step -- this bill doesn't go far enough, but I would hope that we'll have an opportunity to take that next step with a future government where we could in fact establish WCAT under its own separate, quasi-judicial legislation with guidelines that would be very clear for all to see. But the first step in repairing this bridge called workers' compensation is to start at the top with the makeup of the board. You've turned down the one that I think is the most critical one, the inclusion of an injured worker on the board. I would ask you to support eliminating the chair of the appeals tribunal. At least that would be a step in the right direction.
The Chair: Further discussion?
Ms Murdock: Just very briefly, the chair of the appeals tribunal is a non-voting member of the board of directors. The non-voting aspect has not been mentioned in any of Mr Mahoney's comments.
Mr Mahoney: I mentioned it, Mr Chairman. I would correct the parliamentary assistant. I absolutely mentioned they're a non-voting member.
Ms Murdock: Okay, I apologize.
Mr Mahoney: I said at the beginning that I don't support non-voting members of boards of this nature under any circumstances. I don't know why you would ask someone to attend. Are you simply -- not you personally but you generically -- trying to influence that person by having them sit through a board meeting where they have no vote and no say just so they can hear the arguments, or are we having them there to contribute to the debate? Frankly, I would almost go so far as to say, if you're going to make him a voting member, put him on the board. But we don't think they should be on the board, whether they're voting or non-voting. So I did make that remark.
Ms Murdock: In 1985, Mr Mahoney, when WCAT was first instituted under Bill 101, the whole point of having WCAT in place was because there was dissatisfaction with the appeal mechanism within the board at that time because all of the appeals were done by board personnel within the board administration, and it was felt by the government of the day that there had to be an outside mechanism.
I think that when they instituted WCAT, that meant then you still had to go through the three appeal processes within the board -- claims adjudication, decisions review branch and hearings officer -- and that all done within the board administration, and then that there be an outside agency to make determinations that looked at the merits and the set of facts before it on each individual case, and that they're bound by the act but they're not bound by board policy.
It was also felt at the same time that the chair of the board should sit in the board of directors' meetings so that he or she would have a sense of -- I'm echoing here -- what the policies and the discussions around those policies by the board of directors would be. That is the whole purpose of having, in this case, Mr Ellis sit with the board and have no vote. So we're not about to change that.
The Chair: Further discussion? Seeing no further discussion, all those in favour of Mr Mahoney's motion?
Mr Mahoney: Recorded vote.
The Chair: All those in favour?
Ayes
Carr, Offer, Mahoney.
The Chair: All those opposed?
Nays
Martel, Mills, Murdock (Sudbury), Sutherland, Waters, Wood.
The Chair: The motion is defeated.
We now have a PC motion. Mr Carr.
Mr Carr: I move that subsection 56(1) of the Workers' Compensation Act, as set out in section 11 of the bill, be amended by striking out paragraph 5 and substituting the following:
"5. One chair, to be appointed by the Lieutenant Governor in Council on the recommendation of the board of directors."
And I further move that the following subsections be added to section 56 of the Workers' Compensation Act, as set out in section 11 of the bill:
"Same
"(2.1) The president of the board is a non-voting member of the board of directors.
"Directors representing workers
"(2.2) The directors appointed under paragraph 1 of subsection (1) shall be appointed on the recommendation of a committee of five representatives of workers appointed by the Lieutenant Governor in Council for the purpose of recommending directors. One of the representatives shall represent unorganized labour and one shall represent injured workers.
"Directors representing employers
"(2.3) The directors appointed under paragraph 2 of subsection (1) shall be appointed on the recommendation of a committee of five representatives of employers appointed by the Lieutenant Governor in Council for the purpose of recommending directors.
"Full-time directors
"(2.4) One of the directors appointed under paragraph 1 of subsection (1) and one of the directors appointed under paragraph 2 of subsection (1) shall be appointed to serve full-time."
This just goes a little bit further than some of the discussions we had over the last amendment. What we have done, and I guess the real key is similar to the Liberal motion, is having a representative of the injured workers, as well as unorganized labour, because as you know, there could be some potential criticism of some of the labour representatives being from simply the labour movement. So we've included an unorganized labour representative and one representative of injured workers, and we are fairly broad in the injured workers to allow the discretion, as opposed to the Liberals, which I think was a little bit more specific.
Also, as it goes on to say, it ensures the president of the board is a non-voting member of the board of directors, it ensures that the chair is appointed by the Lieutenant Governor on the recommendation of the board of directors, it ensures one representative of the board and one representative of the workers' member of the board shall serve on the board of directors in a full-time capacity, and it also ensures the director is appointed by the Lieutenant Governor on the recommendation of representative groups of workers and employers. I think this is something that was called for during some of the hearings. There were various groups that came forward and presented that; the CFIB is one representative.
In the PLMAC reform framework recommendation, the president is included as a member of the board and the chair is clearly assigned the role of mediating impasses between other parties. We've incorporated these two into our amendment.
Also, we wish to ensure that the interests of the unorganized workers are represented. There have been situations in the past where the board of directors' decision was inadequately communicated to the administration for whatever reason, which resulted in delay and confused implementation.
We think this particular amendment will deal with that, and I suspect that the presence of the president of the WCB at the board of directors' meeting would ensure that the WCB administration clearly understood and could undertake to accurately and effectively implement the board of directors' decisions. With some of the concerns that have been raised about that happening, I guess I believe at the end of the day that through our elected officials in the appointment of the board of directors, they must be the ones that make the final decisions.
1750
I know some of the people at the board may find that difficult at times to accept, knowing that they know pretty much what goes on and what should go on, but very clearly the elected representatives of this province, who then appoint the board of directors, should have final say. I think that's a very critical point, that the president be there, take the direction and make sure that it's fully implemented, and this amendment will ensure that it's done.
Ms Murdock: I find it sort of incredible that this amendment would require an entire new strata of appointment officers appointed by the Lieutenant Governor in Council to determine who is going to sit on the board, which in my view would be even more bureaucratic than the system already is, and I think all of us would agree that it is.
I know that the intent of the Conservatives was to try and make this a more rounded process and that the appointment of the people who would be sitting would be selected in a manner that was less -- what's the word I'm trying to think of? -- polarized or politicized. But I don't think the way this is worded would do what is the intent of the Conservatives, so I will not be supporting it.
Mr Carr: I know the people who may have taken a lot of the flak in the past have been the front-line workers, who seem to get the criticism, and that is unfair. A lot of the problems go back many years under different administrations of all political stripes.
The direction that has been put forward by the WCB has created the problems. In my mind, you don't blame the people lower down; you blame the board of directors and the people higher up. So if we do have any failures with the WCB -- and as you know, WCB is now being referred to as standing for "wackos control billions."
There is much criticism out there from everybody, whether it's injured workers, the employers, the various groups that are very critical, and where we have lost direction, it seems to me, is at the board level. The commission is going to go look through and decide what's going to happen whenever it reports. I believe that the board of directors is critical to the way the board is being run.
For you to say that it's going to create another large layer, the board of directors in any corporation should be setting the direction. Boards that run efficiently, whether it's boards of directors at banks -- some of the numbers go up as high as probably close to 30 on some of the major banks' boards of directors. You're not adding a lot of cost to the system because we would also be looking at a situation where the board of directors does not get a substantial amount of pay.
But what happens on most boards of directors, whether it be banks or in the private sector, is that you get a good group of professionals who then break off into committees of the board and actually get something done. It seems to me that if we have any criticism of the board of directors over the past, it's that the directions haven't been put forward to the administration and the people doing the work at the board. So one of two things happens: Either the board is giving poor direction or it's not being implemented by the people who are underneath the board of directors.
I think we can do a much better job. I think the board has to take the major responsibility for some of the problems, although I guess if you talk to some of the board members, their feelings probably always were that the problems weren't created by the board, that they were created by the system and the direction the governments gave to them. That's no criticism of this government because you weren't around for a lot of the years when the problems came forward. It just seems to me that we have to tackle it at the board of directors level. What the present system is and what the government is proposing to do I don't believe will do that. Having said that, I guess the big element and the big key is that the quality of the people who get put on the board is probably more important than the actual structure. Of course, that's a decision of the government of the day. But I just take a look at it and see what we're talking about in terms of the board structure. It seems to me it would be simple management practices.
As we've had some of the discussions over the past amendments, when we got into some of the legal questions I referred to the fact that I didn't have a legal background but my background is in business. When you look at the structure that we're proposing and putting forward, I think it is something that, if you were to take a look at it from a purely business standpoint and a management standpoint, is a workable and a very effective board of directors. That's why we put this particular amendment forward.
Again, I suspect that we're not going to be able to get this passed, but when I take a look at the amendment and the structure we're putting forward, I think this would add greatly to the bill.
Mr Mahoney: I'm a little surprised. First of all, the comment made, I think, was that they don't get a lot of money or something.
Interjection.
Mr Mahoney: No, not by Mr Carr. I heard a reference to the --
Mr Carr: Board of directors.
Mr Mahoney: Well, they get 200 to 400 bucks a day. I couldn't tell you how many days they sit, but it's quite a few. I would tell you that one of the recommendations we made actually is that we should go to an honorarium, a buck a year, and that people should be seconded, both from labour and from the private management sector, to come in and work on the board and resolve these problems. Now, I've received some comments from people who say you'd never get anybody to do it for a buck a year; I think you would.
I think there are a lot of people out there. They'd have to be seconded. You wouldn't have someone who worked for the Steelworkers, for example -- we're going to run out of time here, but I think this particular motion sets up two new committees, appointed by the Lieutenant Governor in Council, whose members would also be paid 200, 300, 400 bucks a day to recommend people. I just think it's more bureaucracy and it sounds to me like it runs counter to some other thing I heard about a Common Sense Revolution; I don't know.
The Chair: In light of the fact that I think there will be more discussion, this committee will stand adjourned until Monday.
The committee adjourned at 1758.