CONTENTS
Monday 21 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:
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/ Prince Edward-Lennox-Hastings-Sud ND)
for Mr Waters
Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan
Also taking part / Autres participants et participantes:
Arnott, Ted (Wellington PC)
Ministry of Labour:
Cohen, Sherry, legal counsel
Eastman, April, policy adviser, workers' compensation unit
Clerk / Greffière: Manikel, Tannis
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1544 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're continuing with our clause-by-clause analysis on Bill 165.
Before we resume the debate on Mr Carr's motion, just to let all members of the committee know, we have a second replacement on government motion number 14. We have version 2 now. It's in front of each of the members.
Mrs Elizabeth Witmer (Waterloo North): Which section? Section 7 of the bill?
Ms Sharon Murdock (Sudbury): Yes, and it's now at the top of the next page, but if you look at the other one, it's in subsection (5.1), in "the net average earnings in clause (3)(a)"and we had "(b)" in the other one and it should be "(a)." That's the only difference.
Mrs Witmer: Before we begin, could you just bring us up to date? I understand that there's going to be time allocation on this bill to be discussed in the House on Wednesday. Is that so?
The Chair: Ms Murdock? Anybody?
Ms Murdock: I believe there's a time allocation motion being introduced for debate in the House this afternoon.
Mrs Witmer: This afternoon?
Ms Murdock: It has to be done the day before, for tomorrow.
Mrs Witmer: For tomorrow?
Ms Murdock: Yes.
Mrs Witmer: So this in essence could be the last day of committee on Bill 165?
Ms Murdock: My understanding is that we would have to come back into committee for one day in order to complete the clause-by-clause debate.
Mr Steven W. Mahoney (Mississauga West): As opposed to committee of the whole?
Ms Murdock: Yes.
Mr Mahoney: So there'd be no committee of the whole in the time allocation motion. It will be done here.
Ms Murdock: I haven't seen the time allocation, Mr Mahoney, and I don't know if the House leader read it in at the end of orders of the day, but I know that it's on the agenda to be introduced, as the rules say, by 5 o'clock the day before you intend to debate it. So it's supposed to be in today.
My understanding, because I will not be here this Wednesday, is that we would come in on Monday for the last day of committee.
Mrs Witmer: So we won't be in here Wednesday for committee.
Ms Murdock: Right.
Mrs Witmer: I wonder if somebody could get us a copy of that motion before we leave here today so everybody knows exactly what's going on. It appears there won't be that opportunity then for full debate in the House.
Ms Murdock: If it hasn't been introduced into the House yet, I don't think you can, can you?
The Chair: In fairness to everybody, I believe the time limit for tabling it is 5 pm this afternoon and then it would go to the clerk and then it would show up in Orders and Notices for tomorrow. So until 5 o'clock, it may not even be tabled with the clerk.
Ms Murdock: That's right, and if isn't tabled by 5, then there is no debate tomorrow. But my understanding is that this is what the agenda is.
Mrs Witmer: Our House leader was alerted, so I know it is happening.
The Chair: Thank you. If we may proceed, on Mr Carr's motion, and it's number 33 in your books.
Mr Mahoney: I have 32 and 34. What happened to 33?
The Chair: Number 33 was the one we were discussing last on November 16.
Mrs Witmer: What is that motion?
The Chair: Section 11, paragraph 5 of subsections 56(1) and 56(2.1), (2.2), (2.3) and (2.4). Any further discussion? Mr Mahoney.
Mr Mahoney: As I read this motion, this would establish two committees of five people on each, five representing labour and five representing employers. The purpose of these committees would be to appoint members to the board. It seems a little bit either bizarre or unclear that they would be by order in council, "appointed by the Lieutenant Governor." I presume they would be nominated by the government and I don't understand it. If this is an attempt to somehow depoliticize the appointment of people to the actual board, it's kind of strange that you'd politically appoint 10 people, with no reference to what they would be paid. We know that board members today receive remuneration in the neighbourhood of $200 to $400 a day when they meet.
We don't have any indication under this as to what these committee members would receive, and it seems to me that it sort of runs contrary to everything I've heard from the Conservative caucus, that it sets up another layer of bureaucracy to make decisions. I can't support this. I don't know if Mrs Witmer wants to make an argument in favour of it, but I find it to be very bureaucratic and don't understand the rationale behind it.
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Mrs Witmer: There's not duplication. What our amendment does in this case is to ensure that the president of the board is a non-voting member of the board of directors. It ensures that the chair is appointed by the LG on the recommendation of the board of directors; that one representative of the employer member of the board of directors and one representative of the worker members of the board of directors shall serve on the board of directors in a full-time capacity; that directors will be appointed by the Lieutenant Governor in Council on the recommendation of representative groups of workers and employers; and that workers who presently are not represented by organized labour and injured workers will now have the opportunity to recommend that directors be on the board and be there as their own representatives.
We're simply following through on what has been discussed by the Premier's Labour-Management Advisory Committee, and certainly in their recommendations of March 1994 the president is included as a member of the board and we've done that. We believe there is a role for that individual in mediating an impasse between the other parties and so we have incorporated those two elements into our amendment: the fact that the president is on the board and the fact that the individual should have a role in mediating any impasse between the other parties.
Also, the presence of the president of the WCB at board of director meetings would ensure that the WCB administration would clearly understand and would undertake to accurately and effectively implement board of director decisions. We know that in the past there have been times when a decision that was made by the board of directors was not adequately communicated to the administration and we've had resulting delays and we've had confused implementation. This would prevent that from happening, if we ensure that the president of the board is a non-voting member of the board of directors.
So, as I say, we also wanted to make sure that the non-organized labour representatives would become members of the board and that injured workers who have for too long been denied an opportunity to sit on the board would have representation. As a result, these are some of the changes we are recommending to the board of directors.
The Chair: Further discussion? Seeing no further discussion on Mr Carr's motion, all those in favour? Opposed? Defeated.
Mr Mahoney: Which number is version 2 that you handed out in the amendment package?
Clerk of the Committee (Ms Tannis Manikel): Number 14.
The Chair: It says version 2 at the top, replacement motion.
We now have a government motion.
Ms Murdock: I move that subsection 56(4) of the Workers' Compensation Act, as set out in section 11 of the bill, be struck out and the following substituted:
"Absence of chair
"(4) The chair shall decide which of the directors shall act as chair in his or her absence. If the chair does not do so, the board of directors may decide which of them shall act in the chair's absence."
I think it speaks for itself.
The Chair: Further discussion? 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 section 56 of the Workers' Compensation Act, as set out in section 11 of the bill, be amended by adding the following subsections:
"Construction advisory committee
"(5) An advisory committee, composed of three persons representative of construction workers and three persons representative of construction employers, all to be appointed by the Lieutenant Governor in Council, shall be established.
"Same
"(6) The function of the advisory committee is to advise the board of directors on issues specific to the construction industry."
I believe there's a similar if not identical motion the Conservatives are putting forward next. We heard in the committee, members will recall, this request came from the Labourers' International Union of North America and was followed up with support from the Council of Ontario Construction Associations, the management organization within construction. They feel that construction, and obviously it is, is very unique, with regard to workers' comp, to the types of accidents, the type of health and safety requirements.
They have not felt that the board, or the government for that matter, has been listening to them with regard to suggested changes and improvements. This would put in place in legislation an advisory committee on an ongoing basis that would allow for construction to be highlighted as a very special sector within the area of compensation and health and safety. It's supported by both sides in the debate. I'm pleased to put it and would hope that we'd find all-party consent for this.
Mrs Witmer: As Mr Mahoney has indicated, this is an amendment that we have also proposed. It was a request that was made by both the employer and the employee groups. They very strongly were encouraging us to include a construction advisory committee to the board of directors because, as has already been indicated, the construction industry is indeed unique. It actually provides a tremendous amount of jobs in this province.
During the past number of years the government has failed to recognize the uniqueness of the construction industry and unfortunately did not listen to the request. I hope they will reconsider and give support for this amendment which would allow that whole issue to be addressed. I encourage them to support the construction advisory committee.
Ms Murdock: I know that there was some discussion during the public hearings by both sides, as Mr Mahoney and Mrs Witmer have stated. During those public hearings I advised that the deputy would be meeting with both sides to discuss meetings. They have occurred since the public hearings. Just as why we didn't support the last Conservative amendment, our view is that it is a standing committee as an advisory committee.
There is a motion before the board of directors of the Workers' Compensation Board right now in putting that together and having a regular committee set up, so they recognize the uniqueness of the construction industry. That's already recognized, I would say, under the way the board operates under the CAD-7, for instance, and frankly in our view it's more appropriate for the board of directors to be setting up that than legislating standing committees. So we will not be supporting it.
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Mr Mahoney: Just for clarification, the board of directors is not setting it up. It's being appointed by the Lieutenant Governor in Council to advise the board of directors, so we're not asking the board to do something.
Ms Murdock: I know.
Mr Mahoney: We're asking the government to do something, to establish an advisory committee to give advice. It isn't mandatory. It's not like they have some kind of power over the board, it's simply to ensure that there's a group in place, bipartite, which all of you in the government seem to think is the greatest thing in the world, a bipartite committee that will give advice and respond to issues of concern. So I just wonder -- because the parliamentary assistant did say something about the board setting up the committee, and we're not asking for that to happen.
Ms Murdock: No, I realize that the motion isn't asking for that to happen, and the motion is mandatory. When you say that an advisory committee shall be established, it's legislatively mandatory. What I'm saying is that I don't believe it should be. I think the board of directors should set that up, and it is already in the process of doing that.
Mr Mahoney: Mr Chairman, I'm being a little bit argumentative, but if this were to carry, it would be mandatory to establish the committee.
Ms Murdock: Yes.
Mr Mahoney: There's nothing requiring the board to accept their advice. It's an advisory committee. They would put that information forward. If the board decided, for example --
Ms Murdock: Yes, I understand that.
Mr Mahoney: -- that due to the financial accountability requirement it could not accept the advice, it wouldn't accept it. So we shouldn't confuse the mandatory aspects of it.
Ms Murdock: I'm not confusing them, Mr Mahoney. I understand perfectly that what you're asking is that this committee be legislatively mandated to be organized and put in place, and I'm saying that I don't agree with your position on legislatively doing it. I believe it's the board of directors that should be doing it, and it is.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Mr Mahoney?
Mr Mahoney: Recorded vote.
The Chair: Recorded vote. On the motion by Mr Mahoney, all those opposed?
Mr Mahoney: All those in favour.
The Chair: Sorry.
Mr Mahoney: I know it's going to be defeated, but just humour me.
The Chair: All those in favour of the motion by Mr Mahoney?
Ayes
Mahoney, Witmer.
The Chair: Opposed?
Nays
Johnson (Prince Edward-Lennox-South Hastings), Klopp, Martel, Mills, Murdock (Sudbury), Wood.
The Chair: The motion is defeated.
The next one by the PCs is identical to the one previous, so same fate. PC motion next, Mrs Witmer.
Mrs Witmer: I move that section 56 of the Workers' Compensation Act, as set out in section 11 of this bill, be amended by adding the following subsections:
"Duty of chair
"(5) It shall be a duty of the chair of the board of directors to mediate between opposing directors.
"Chair is chief spokesperson
"(6) The chair shall be the chief spokesperson of the board."
This amendment is put in and it really supports the board of directors amendment that we discussed just a few minutes ago. This clarifies the fact that the chair is to act as the chief spokesperson and representative of the board, with responsibility to mediate between the opposing positions of the directors.
This has been strongly supported by a number of groups that made presentations during the course of our committee hearings. They had real concern with the existing bipartite board structure. Much of that concern results from the fact that the strictly bipartite board as we have it at the Workplace Health and Safety Agency is creating tremendous problems. It's not working as was intended, and what has happened is that the two sides have just become entrenched and there's no progress being made whatsoever.
So we've already seen a board, the Workplace Health and Safety Agency, unable to effectively deal with major issues without constant bickering and, as a result, there is concern. Unfortunately, if you take a look at that agency, the only people who have suffered are the employees, so for that reason we are proposing that the chair have the power to mediate between opposing directors and be the chief spokesperson of the board. It also is our expectation that the royal commission would further review this governance structure.
Ms Murdock: We've heard much about bipartism, and I know that the Workplace Health and Safety Agency has been used as the example of how it doesn't work, at least by the business community certainly and by the hospital association when they were here before us. I would hasten to add that the numbers of decisions that the health and safety agency has consensually decided are in the hundreds. It is the controversial ones, as everyone knows, where there are oftentimes entrenched sides and you have difficulty making it.
I'm not disputing that the chair should act as a mediator, but I'm saying that is the chair's role basically anyway. In BC where the chair does in actual practice operate as a mediator, it is not in the statute, it is not legislatively mandated. I think the function of the job requires that capability of whoever is going to be the chair, so I don't think it needs to be mandated.
The other thing is that if there is a tie at any point in time, the chair will break it. That is the role of the chair as well. So I don't see the need to put this into the legislation.
The Chair: Seeing no further discussion, all those in favour of Mrs Witmer's motion? Opposed? Defeated.
Ms Murdock: May I ask a question? After the Liberal motion on subsection 11(6), section 56, which we defeated, was there not a PC motion?
The Chair: It was identical to Mr Mahoney's.
Mrs Witmer: It was the same.
Ms Murdock: Oh, I see. All right, thank you.
The Chair: On section 11, as amended: Shall section 11, as amended, carry? Opposed? Carried.
We now have a Liberal motion. Mr Mahoney.
Mr Mahoney: I move that subsection 58(1) of the Workers' Compensation Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Duties of the board of directors
"58(1) The board of directors shall act in a financially responsible and accountable manner in exercising its powers and performing its duties, as required by subsection 0.1(e).
That should read "(e)." It says "(2)" on your page; it should read (e) as in Edward.
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The concern here is that under the wording that exists in the bill where it says, "The board of directors shall act in a financially responsible and accountable manner in exercising its powers and performing its duties," it doesn't refer back to the purpose clause as to what its duties actually are. It's our contention that there should be a tie-in back to the original purpose clause and the amendment.
Even though the amendment that the government has put with regard to financial responsibility, in our view, didn't go far enough because it does not regulate any potential abuse by WCAT or any other agency that could drive and does drive the cost of the board up, we at least think there should be a tie-in between subsection 58(1) and the original purpose clause.
If the government is serious about the board acting in a financially responsible and accountable manner, then I would think it would agree with that.
Mrs Witmer: Yes, we are certainly prepared to support that particular amendment. We believe it's absolutely essential that the board of directors act in a financially responsible and accountable manner.
Ms Murdock: It's quite interesting, because I remember I specifically asked the business community when they came here and were quite concerned about the purpose clause not having financial accountability and responsibility within it in the original bill. I said to them, "If you had your choice as to where it would be, where would you want it to be?" and they all said the purpose clause, without exception. So in our amendment that's where we put it.
The other point I would make, though, is that by putting it legislatively in another section of the act, I think it's redundant and it's confusing and then there are two sections of the act. I don't agree with Mr Mahoney's position that it has to refer back to the purpose, because overriding the whole act will be the purpose clause.
I know his big concern is on WCAT, which he has mentioned time and again throughout the three weeks and through the clause-by-clause, but the reality is, as we heard in a discussion on an earlier motion or amendment debate, that the WCAT is outside in terms of its decision-making. It is not within the purview of the board, and shouldn't be if it is a separate appeal mechanism.
We have now included it in the purpose clause and we don't want to add any further confusion by adding it in another section of the act, so we will not be supporting this clause.
Mr Mahoney: Am I to take from this that you'll be deleting subsection 58(1) then from the bill entirely?
Ms Murdock: Yes.
Mr Mahoney: So rather than clarifying it -- because the redundancy and the confusion could be eliminated by simply tying it back into the original purpose clause. Then actually it eliminates any redundancy or confusion and makes it very, very clear.
Ms Murdock: My own view of this during --
Mr Mahoney: Let me add, by the way, we lobbied to have it put in the purpose section of the bill, and support that, but the amendment that you put in the purpose clause (a) doesn't go far enough and (b) this would eliminate any confusion with regard to the board's exercising its powers and performing its duties, because it ties right back in. When you read this section, it would then refer you back to the purpose clause, so it would be a natural tie.
Ms Murdock: No. Again I'll go back to the public hearings on this, because my own view of this, even to the injured worker groups that came before us here, was that I felt, as a lawyer I guess, that it was stronger in section 58 than having it in the purpose clause, and I said this during the committee hearings, did they not feel that it wouldn't have the same kind of effect? The business community felt that the purpose clause was where it should be and that's where they wanted it.
I guess this is a basic philosophical difference. I would never agree to an amendment, and I don't think any of my colleagues would, that if an injured worker ends up getting an injury or a disease, somewhere down in the policy or guidelines, the decision-making people on the front line are making a decision on the basis of whether or not the board could afford it if the worker was injured or had the disease. That was unacceptable. We would never agree to that -- never.
The Workers' Compensation Act is there to protect workers who are injured on the job. We think the purpose clause does that and we don't need to see it in subsection 58(1) once we changed our mind and put it back into the purpose clause.
Mr Mahoney: Could I just ask for a clarification on that last point? You said that if a worker is injured, you would never allow a decision to be made based on the financial position of the board.
Ms Murdock: Yes.
Mr Mahoney: So whether or not the board had the money, the compensation should be covered. But what about an injury that's not currently covered? Would that decision to add a new category of compensable injury or illness to the compensation system -- and we all know what I'm talking about --
Ms Murdock: Yes, stress on the job.
Mr Mahoney: -- without taking into account financial ability of the board to pay -- you've just struck the exact chord, the fear that everyone has, particularly with your government, that there will be no reference, and you've in fact admitted that notwithstanding what you supposedly put in the purpose clause, the way for you to get around the financial responsibility is to have a decision made at WCAT, where they don't have to take into account any of the financial requirements. Even if the board of directors does, WCAT can set the policy under your model and the board will simply have to write the cheques.
Ms Murdock: I remember distinctly that I was stunned, actually, when I asked one of the business groups -- I think it was the Employers' Council on Workers' Compensation. No, we didn't have enough time to ask them questions. It was the chamber of commerce one after that. I asked specifically, "Are you saying that you want financial accountability and responsibility in the purpose clause and that front-line workers would make the decision?" and instead of asking, "Does the worker have the injury or the disease and was it a work-related injury?" it says, "Can the board afford to pay for this?" and they said yes. I said, "Well, we will never agree to that."
I know the one that you're concerned about is the whole stress issue, but on the industrial diseases, those that have been decided over the years -- for instance, the lung diseases in miners, which took years and years to be recognized. As I said, it took years before it was recognized, and even then it was only since 1985 that the gold miners' disease has even been recognized, and yet they've gone back to pre-1945 cases.
Yes, I think that if a disease, and I don't care what it is, is recognized as being work-related, after study, not just on a whim, then there is no question that the workplace has to pay for it. I would say that has been the position of the New Democratic Party for years -- well, in my lifetime -- and it certainly has not changed.
Mr Mahoney: It's one of the few that hasn't changed.
Ms Murdock: Well, you may think that.
Mr Mahoney: I'm not alone in that.
The Chair: Further discussion? Seeing no further discussion on Mr Mahoney's motion, all those in favour? Opposed? Defeated.
Now I have a government motion.
Ms Murdock: I move that subsection 58(1) of the Workers' Compensation Act, as set out in section 12 of the bill, be struck out.
I think in the previous discussion we explained our position.
Mr Mahoney: Recorded vote.
The Chair: Seeing no further discussion, a recorded vote. All those in favour?
Ayes
Johnson (Prince Edward-Lennox-South Hastings) Klopp, Martel, Mills, Murdock (Sudbury), Wood.
The Chair: Opposed?
Nays
Mahoney, Witmer.
The Chair: The motion is carried.
Mr Mahoney: While we're carrying on with this, in reference to Mrs Witmer's concern earlier about a potential motion on closure, could we ask the clerk to see if that motion has been tabled, and if it has, to get us a copy of it, and if it hasn't, to ask the Clerk at the table to give us a copy in this committee as soon as it has been tabled? I would like to know, basically, what's left on the docket. As the whip for our party I attend the House leaders' meetings and was told last week that there would be time allocation put forward this week at some point, but the question is whether or not it's going to allow any substantive time for committee of the whole when these amendments could be dealt with in committee of the whole in the Legislature for final reading and for third reading debate. Exactly how much time is going to be left? Because it's my contention that along with the closure motions on long-term care that we've seen, and there was one other before that --
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Mr Len Wood (Cochrane North): Municipal Act.
Mr Mahoney: -- the municipal, 163, thanks -- it's quite clear that the government's modus operandi is to have all of the amendments dealt with in sort of the back rooms of this place, in committee, albeit recorded in Hansard, but not for the public other than the few who choose to be here and who even know these hearings are going on or these meetings are going on.
Frankly, if we're going to have a form of closure issued by the government and a debate on that, I would just as soon forget about this apparent waste of time where only government amendments carry in this place and opposition amendments are defeated in every instance.
Notwithstanding the fact that these amendments come from the number of public hearings that we had, in many cases with agreement on both sides, of labour and management, they're being defeated, so it's quite clear that the parliamentary assistant, in doing her job, has got marching orders, as does the committee, and that the process we're going through here is merely a charade. I could make better use of my time in the Legislature or attending to other business than sitting here going through this nonsense.
I would like to know what the government House leader's plans are as soon as we possibly can. If in fact they're going to restrict and eliminate any opportunity for committee of the whole debate in the Legislature and restrict the debate, as they did in terms of Bill 163, to what I think amounted to about half an hour in committee and an hour for third reading in the Legislature, then the government should just come clean and tell us that you're planning to shove this stuff down our throat and I can probably swallow it a little bit easier, rather than sitting here spinning my wheels on these amendments.
I would ask that we get that information as quickly as possible.
The Chair: Thank you, Mr Mahoney. In fairness to the clerk, this committee will stand recessed for 10 minutes while she contacts the Clerk at the table.
The committee recessed from 1623 to 1639.
The Chair: I'd like to call this committee back to order. It's my understanding nothing's been tabled with the Clerk of the House yet, but we will be notified if the Clerk does receive anything, which is usually, traditionally, around 5 o'clock.
We now have a PC motion.
Mrs Witmer: I'd like to move that section 58 of the Workers' Compensation Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Responsibility of the board for other bodies
"(3) The board of directors is responsible for the following:
"1. The Industrial Disease Standards Panel.
"2. The office of the employer adviser.
"3. The office of the worker adviser.
"4. The Ontario Workers' Compensation Institute.
"5. The Workers' Compensation Appeals Tribunal.
"6. The Workplace Health and Safety Agency."
What we are attempting to do here is to streamline the operation of the whole system of workers' compensation in this province. We've known for years that what is happening at the present time is that money is being squandered; things are not operating as efficiently and as effectively as they could function. Money that could be directed into the hands of injured workers is being squandered and being used in wasteful ways.
We are suggesting that the board assume responsibility for all of the other agencies, and in that way costs could certainly be reduced and all decisions could be made by one central body. I think the one body that we have the most concern about is, of course, the Workplace Health and Safety Agency. As I indicated earlier, the bipartite model is not working. We know that 75% of the businesses in this province have not yet registered for training simply because there has been no attempt to cooperate with the small business community and provide the sector-appropriate training.
We see individuals who have a single agenda, who seem to be unwilling to compromise and make decisions that are in the best interests of the injured workers and the employer community and employees in this province. Our suggestion is that we need to streamline, that we need to downsize and that we need to ensure that we deal with, number one, prevention of accidents. That always has to remain our priority for everybody in this province, and certainly that can be done by making the Workplace Health and Safety Agency a department of the board and focusing exclusively on that.
We also have to take a look at providing training differently than we do today. A classroom setting, folks, is not the only way today of providing training. There are different models that can take place in the actual workplace. What we need to do is focus on prevention, and obviously if we can't -- we will never be able to avoid all accidents in the province. Then we need to deal with the administration. We need to take a look at the office of the worker adviser and the employer adviser. At the present time, I can tell you employees do experience problems with the office of the worker adviser, and unfortunately they end up coming to the MPP's office. We need to provide some customer service training to some of the individuals who are presently employed in those areas because there's a great deal of stress for the injured workers when they attempt to get some answers to some of the problems that they have.
You've got the issue, then, of after the accident, if you can't prevent it, you deal with the administration. Then obviously you deal with any appeals or rehabilitation and so on. In this way we believe we could more effectively manage the operation of workers' compensation in this province.
Ms Murdock: I was going to ask what "is responsible" meant, but Mrs Witmer has explained that it would be a separate department.
Just to go through all of these, the Industrial Disease Standards Panel has its own panel and its own chair and the money is flowed through the Ministry of Labour from the WCB.
The office of the employer adviser and the worker adviser is the same, except that I would point out there that Weiler made it very clear that he felt advocates had to be independent of the board, that that's they way they should operate, and I think the way it's set up is acceptable.
The Ontario Workers' Compensation Institute does not come under the act at all. It is done through a contract agreement with the board of directors.
With the Workers' Compensation Appeals Tribunal, as we know, already the board of directors has budget approval legislatively in the existing Workers' Compensation Act. I know there have been comments made during the public hearings about how that is just rubber-stamped, but that is the responsibility of the board of directors. If that's the way they're going to operate, and if the complaint from the business community is that they don't have any control over it, then it is their duty as board members to see to it that they look at it more closely.
In terms of the Workplace Health and Safety Agency, it doesn't even come under the Workers' Compensation Act at all. It comes under the Ontario Health and Safety Act. Money is flowed from the WCB through the Ministry of Labour, that's true, but it has its own independent board of directors, totally separate from the Workers' Compensation Board. Under the health and safety legislation they put in a requirement for legislative review after a certain period of time, and that is in progress now. The report has not been finished, so we'll know more as soon as that's done.
Finally, when you look at what the mandate of the royal commission is, it's going to be looking at all of this, and I think that's the proper place for it to be. I don't think we should be putting it in the legislation now.
Mr Mahoney: I was wondering how long it was going to take before we started to hear about the royal commission's mandate and the fact that we need not deal with changes to the Workers' Compensation Board because we have a royal commission. I just heard it for the first time from the parliamentary assistant. Of course, we believe that is going to be the refrain that will be sung by the government, by the minister and by anybody else involved in potential reform, that we can't do anything about the workers' compensation system because we've now got a royal commission.
Having said that, I just want to make a couple of comments about some of this. Actually, the intent of this motion is good, but the detail of it doesn't work, because frankly we would close the health and safety agency and create a department for the delivery of health and safety training under the Workers' Compensation Board.
Ms Murdock: You set that up under Bill 162, I'd like to remind you.
Mr Mahoney: We set up the bill but we didn't put the people in charge of it. You did that.
Ms Murdock: Bill 162 came under a Liberal government.
Mr Mahoney: You did that. It was Bill 208. It was Bill 208, if the parliamentary assistant wants to be corrected.
Ms Murdock: You're right. Thank you.
Mr Mahoney: We put the legislation in place, and believed very much --
Ms Murdock: And you asked for this to be a health and safety agency.
Mr Mahoney: -- in health and safety training. We didn't put Paul Forder in charge of it. He's one of yours, and frankly that's where a lot of the problem is occurring.
Ms Murdock: Excuse me, but the business community is not silent here.
The Chair: Order. Mr Mahoney has the floor.
Mr Mahoney: We would clearly change that. On the appeals tribunal, though, it's interesting to think about WCAT being under the control of the board. It's sort of the reverse of WCAT making decisions that drive board policy. Either one of those situations is not acceptable to me. WCAT should be and must be, in my view, completely independent, should be made quasi-judicial, should be set up under its own legislation separate from the board, and should be making decisions that are of a judicial nature and not have the chair, as I tried to get through at our last meeting, sitting on the board in some kind of an advisory capacity, and should certainly not be answerable to the board of directors, but should be, rather, independent in making its decisions of review.
The employer adviser and the worker adviser actually are two of the areas that I think may indeed turn out to be part of the solution to some of the problems. They're extremely busy. My initial reaction before we did our outreach tour was that I couldn't imagine a system that required offices of advisers, that this thing had just gone wild and out of control. But frankly, in looking at it and studying it, it seems to me that these two offices do yeoman service and probably need to have more resources put in their hands to try to expedite the process that they go through, and I think they can probably be part of the solution to this problem and should be somewhat independent as well.
One thing maybe the parliamentary assistant, who's stopped interrupting me, thankfully, could explain for the record, or staff could explain for the record, is the role of the compensation institute. This is such an interesting animal that I think it would be helpful to have it on the record as to what they do and what their budget consists of and what they are there for. Could anyone on the staff answer that?
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Ms Murdock: I remember attending a meeting about them. They're paid by the board of directors. It's a contractual arrangement. But in truth I don't know exactly what it is that they do --
Mr Mahoney: Neither do I.
Ms Murdock: -- other than provide information about different policy issues in different policy areas. They set up a list of things that they want to talk about, the board discusses it with them and they work that out and send in a report quarterly, if my memory serves me correctly. But I'll let April speak to it.
Ms April Eastman: Recently, most of their research has been looking at soft-tissue injuries and how to improve return to work.
Mr Mahoney: And how to what?
Ms Eastman: Improve return to work and to reduce average duration on benefits; they've been doing extensive research into that.
Mr Mahoney: I wonder if at some time in the future maybe the research staff or somebody could get something for committee members. I did not mean in any way to reflect on the knowledge that you may have about this, because I'm in the dark about them as well. I've heard bits and pieces about them. I suspect many of the members of the Legislature are not familiar either with the work they do or the necessity of the work they do.
This might be an area where we could actually do something constructive. If indeed their work is helpful in terms of the functioning of the board, I think we should know that; if it's not, we should know that too. Either your government or perhaps a subsequent government would want to review that agency.
Ms Murdock: It's not an agency.
Mr Mahoney: It's not established as an agency. What is it, a camel?
Ms Murdock: No. It's an institute of study and education that makes a contractual agreement with the board of directors on, I presume, an annual basis.
Mr Mahoney: Funded by the board?
Ms Murdock: Funded by the board. The board makes that decision as to whether it wants their services every year. I know that I met with the chair of that institute within the first year after we were elected, but I have not met with him since. But I can get the information. In fact, we can get you copies of their quarterly reports that they send to the board; those are public. I will find out what other information there is and make sure that both critics get it.
Mr Mahoney: You might want to share it with government members. I suspect all members of the Legislature would be interested in this and probably have a lower knowledge level than even we have on matters of this type. It's probably not appropriate to put a motion; I guess I'm putting it as a request, that information on this institute be put together and distributed to all members of the Legislature.
Ms Murdock: Okay. That's not a problem. I'd be happy to do it. My ministry staff are always able and willing.
The Chair: Further discussion on the motion by Mrs Witmer? Seeing no further discussion, all those in favour of the motion by Mrs Witmer? Opposed? Defeated.
Do we have another PC motion?
Mrs Witmer: I move that section 59 of the Workers' Compensation Act, as set out in section 12 of the bill, be struck out and the following substituted:
"President
"59. The board of directors shall appoint a president of the board who shall manage the affairs of the board in accordance with the policies set forth by the board of directors and in a financially responsible and accountable manner."
What this is intended to do is to add the same obligation of financial accountability on the administration which the president would head. Presently Bill 165 imposes the obligation of financial accountability on the board of directors but not on the president. This would correct that situation.
Ms Murdock: I think that in earlier discussion on another clause this whole issue, in my view, has been addressed.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Mrs Witmer? Opposed? Defeated.
Shall section 12, as amended, carry? Carried.
No amendments to section 13. Shall section 13 carry? Carried.
On section 14, we have a government amendment.
Ms Murdock: I move that section 14 of the bill be struck out and the following substituted:
"14(1) Subsection 63(2) of the act is amended by renumbering clause (a) as clause (a.1) and adding the following clause:
"(a) prescribing classes for the purposes of clause (b) of the definition of `training agency' in subsection 3.1(1).
"(2) Subsection 63(2) of the act is amended by adding the following clauses:
"(h.1) prescribing information for the purposes of subsection 51(2) about the ability of a worker to return to work and about any restrictions affecting the worker's ability to perform work on his or her return;
"(h.2) prescribing requirements, for the purposes of clause 51(1)(b), that must be satisfied before a health professional is required to provide a report under subsection 51(2);".
This is in regard to the training amendment that was introduced with unanimous consent, and it's the consequential regulatory authority that needs to be in place in order to utilize that amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Ms Murdock? Opposed? Carried.
Mr Mahoney: I'm now in receipt of a motion put by the government House leader to shut down this committee and to shut down debate on Bill 165. It calls for a final day of this committee to sit on Monday, the 28th. "All proposed amendments must be filed with the clerk of the committee prior to 12 noon," on that day, and at 4 pm, which would then mean half an hour more of committee work, "those amendments which have not yet been moved shall be deemed to have been moved" etc, even to the point where it instructs you, Mr Chairman, that you "may allow only one 20-minute waiting period pursuant to standing order 128(a)," which I assume is a request for a caucus adjournment. So the government's not only hammering the opposition, it's hammering the committee Chair in this case by restricting your abilities.
Then it goes on to say that as of 4 o'clock, you'll put every motion, every vote will be taken on that day and we'll just sit here until it's all done. Then on the first available day following that, it will be reported to the House. Failing that, it will be determined to have been reported to the House, and then they'll have a two-and-a-half-hour debate on third reading.
Mrs Witmer: That's it?
Mr Mahoney: That's it, which doesn't even allow for the usual 90-minute critics' debate for each of the opposition parties, not to mention the fact that some government members may want to make some comments. So the hammer has fallen upon the opposition, upon the committee, upon you as Chair, upon injured workers and upon everybody in this province with this motion that has been tabled.
This is an utter waste of time, and I move adjournment of this committee.
The Chair: On the motion to adjourn, discussion? Seeing no discussion, all those in favour of the motion to adjourn? Opposed? Defeated.
Mr Mahoney: You guys have a nice afternoon.
The Chair: On section 14, shall section 14, as amended, carry? Carried.
Ms Murdock: Might I ask a procedural question? If this committee continues to sit this afternoon and the opposition members are not present, and opposition amendments obviously would be brought forward, what is the procedure in terms of that?
The Chair: As we go through the book, if there is nobody here to move a Liberal amendment, then it wouldn't be moved and it wouldn't be dealt with. We have a PC critic here. She could move her motion still, and we would proceed on through the amendments.
Ms Murdock: A further question then: Does that mean that we go back to those amendments on Monday when we come back, or if they're not moved in order, they're not moved at all?
The Chair: If the section has been moved and carried, we cannot go back to it unless there's unanimous consent.
Ms Murdock: Could I ask for a five-minute recess?
The Chair: This committee stands recessed for five minutes.
The committee recessed from 1702 to 1707.
The Chair: I call this committee back to order.
Mr Gordon Mills (Durham East): I think that we are elected and we are here to do the business of the people of the province of Ontario, and if the Liberal critic chooses and the Liberal members choose to leave this clause-by-clause examination of the bill, they are not doing the service that they were elected to do, and likewise if the Conservative critic, as I understand it, is also going to leave this committee. So I would suggest that we are here to serve the people of Ontario, and the government members are here to proceed with the clause-by-clause examination of this bill. I want that on the record.
Ms Murdock: I would like to point out -- and I know that the comments were made and that he isn't here to defend himself; mind you, I don't think he needs much defending -- that the time allocation motion that Mr Mahoney is so offended by is a standard time allocation motion; the identical one was used for the long-term-care time allocation motion last Thursday. So there isn't anything different. What was done in terms of the debate in the House for the two and a half hours was that the minister spoke for 10 minutes and the opposition were given all the rest of the time except for five minutes at the end. I would imagine the same kind of agreement will be made on this, so that the opposition sit there with well over two hours to state their views and opinions.
Certainly, given the length of time that this has been discussed, I see no reason at all for the opposition to be saying that they haven't had time or are not being given the opportunity to discuss this with different constituency groups. So I think we should be proceeding. It's seven minutes after five. We don't shut down till six, and we might as well go ahead.
Mrs Witmer: I think I need to get something on the record. I am the PC critic for the Labour portfolio. I would just like to share with you a little bit of information. This is now the 19th time that the NDP government, in four years in office, has selected to behave in this way and deal with bills through closure. During the entire time that the Conservatives were in power, it only happened about five times, and about five times with the Liberals as well. So it's obvious that the NDP does not wish to listen to the people who have made presentations.
Ms Murdock: Well, I don't know if any of my colleagues want to respond, but I definitely want to respond to that. When we first won the government in 1990 -- this is a history lesson here -- the leader of the Conservative Party stood up in the House and read every lake, river and stream in this province alphabetically, in terms of an introduction of a bill, in order to delay any work being done in the House, when it costs a quarter of a million dollars a week to keep this place in operation -- totally offensive. Then we had no choice, because we weren't getting any work done -- we're here sent down by our constituents to be here to do work and they, the opposition, both parties, were not allowing us to do that -- and yes, we changed the rules in the House to allow time allocation; you're darned right.
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The rules prior to our change were not as easily introduced and that's the reason why the Liberal government and the previous Tory governments did not bring as many time allocation motions in, plus, when you're sitting with 42 years of power in this province, and most of them majority governments, excuse me, but you don't need too many time allocation motions. We're sitting here now wanting to get things done. Nineteen times -- if we have to do it 1,000 times, then that's what we'll do to get something done in this province.
Mr Mills: I'd like to echo some of the things Ms Murdock has said. The Tories and the Liberal Party have refused to let us govern the province of Ontario that we were elected to do. They have forced this upon us. I remember only too well sitting, I think, in the House for about three weeks while the Conservative Party read out, albeit in slow motion, every name of every creek and every river in the province of Ontario. Then they followed this despicable tactic up by doing the same thing with the names of villages, hamlets and all that and, I might add, in slow motion and at a cost of $220,000 a day to the taxpayers of Ontario. Then they have the audacity to sit here and criticize this government for closure. Normally we have to resort to closure because their despicable tactics in this House are out there for all the public to see, and all the public knows very well that every delaying tactic has cost the taxpayers -- you, I and the people I represent -- $220,000 a day. That is disgraceful and despicable.
Mrs Witmer: I do take offence with the comments that have just been made. I do not believe, in the course of debate on the bill in front of us, that there have been any obstructionist tactics on our part whatsoever. In fact, if I recall correctly, when we were sitting in committee there were numerous breaks and recesses and I had the impression that at times the government was slowing down the process.
Certainly, we have been most cooperative and I think you need to realize, Mr Mills, it is very frustrating to listen for three weeks to people in this province make suggestions as to how you can better balance the Workers' Compensation Act amendments in order that they respond to the needs of injured workers and employees and employers and then see amendments which are brought in which do not reflect what has been said. We sit here on a daily basis as rubber stamps. No one listens. There is a feeling of frustration, I can tell you.
The Chair: Very --
Mr Ted Arnott (Wellington): No, I can speak, Mr Chairman. I'm a member of the Legislature.
The Chair: Yes, go ahead.
Mr Arnott: There's another relevant point that should be brought into the context of this discussion. The House is sitting for 20 days, remember, this fall.
Mr Mills: Oh, give me a break.
Mr Arnott: Oh, give me a break. We were scheduled to go back September 26, according to the calendar. The Premier when he was Leader of the Opposition insisted upon the creation of a calendar. We didn't respect the calendar this fall; we came back on Hallowe'en, October 31 with 20 days to deal with legislation. Had the House come back as per the normal schedule, there's a good chance we wouldn't be doing this.
So to blame the opposition for the closure motion is absolute nonsense, and I would like to give Mr Mills the opportunity to withdraw some of the really inflammatory rhetoric that he employed in his remarks earlier.
Mr Mills: I meant every word.
The Chair: In fairness, we are on Bill 165, we're on the clause-by-clause submissions. To get on with this political debate would be wasting the committee's time, being as the committee has decided to proceed. So we will proceed.
On section 15 we have a PC motion.
Mrs Witmer: I move that subsection 65(2) of the Workers' Compensation Act, as set out in subsection 15(1) of the bill, be amended by striking out "Seven members" in the first line and substituting "Seven voting members".
The bill presently does not take into consideration the fact that all members of the board need to be voting members, and business can now be passed with non-voting members present and, as a result, you could be conducting business using the presence of the WCAT chair, a non-voting member, to meet your quorum. This amendment would ensure that the quorum would consist of voting members.
Ms Murdock: This is sort of interesting because when I read this Conservative amendment, I went back to the bill and in order to have any decision by the board, no non-voting member obviously would be part of that decision, right?
Mrs Witmer: But they can conduct business.
Ms Murdock: You would still have to have a majority of the seven, and say one of them was non-voting, hypothetically here, then you'd still have to have a majority of the six in order to have any decision made by the board. So when you read 15(2), the only change is that you've got the word "voting". That's basically the only change. A decision of the majority is a decision of the board of directors. They have to be voting in order to have a decision. It's assumed that you have to be voting within the language that's used within that section.
Mrs Witmer: But it doesn't explicitly say that and at the present time, you could have seven members discussing the business, conducting the business and they would not all necessarily be voting members. This actually was an issue that was raised by the Municipal WCB Users Group, by M. C. Ward and Associates and the Employers' Advocacy Council.
Ms Murdock: I remember that, but my point is, when you look at the composition of the board and who votes, the only non-voting member is the chair of the appeals tribunal, who can't vote on anything anyway.
Mrs Witmer: Right.
Ms Murdock: But can be considered one of the members.
Mrs Witmer: And he can be used to meet the quorum.
Ms Murdock: To meet the quorum requirement, but cannot be a decision-maker in any of the votes that are called.
Mrs Witmer: We want to ensure that the quorum would include only the voting members, that the individual would not be counted in the quorum.
Ms Murdock: I guess what I'm asking is, why?
Mrs Witmer: Because we believe it's absolutely essential that those individuals who are going to be involved in making the decisions be individuals who are entitled to vote and we do not believe it's appropriate for a WCAT chair, who is a non-voting member, to be counted in for the purposes of meeting the quorum.
Ms Murdock: But this goes back then to your request earlier to have -- I think it might have been the Liberal one -- the WCAT chair not even be at the board meetings, period. I think that was a Liberal amendment. I would say that sometimes -- not that it happens all the time -- it happens that some people arrive late and you can't start the meeting until you get them all there. Given that decisions can't be made by the non-voting member, I don't see that there should be a problem.
Mrs Witmer: If an individual is going to be making decisions and casting a vote, obviously it's extremely important that before any discussion or debate occur, they all be there for the start of the discussion rather than running in at the last minute and not have had the benefit of the discussion, and understand fully the reasons why they're taking a position.
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Mr Arnott: Like I just did.
Mrs Witmer: Yes, like this person just did.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Mrs Witmer? Opposed? Defeated.
Mrs Witmer: I think it needs to be corrected for the record that Mr Mills had indicated that I was leaving, the PC Labour advocate, and I'm here as well as my colleague Ted Arnott, even though the Liberals are not here, so I think the record needs to stand corrected.
Mr Mills: Mr Chairman, perhaps I could just add that the reason I said that was because I think Ms Murdock asked Mrs Witmer if she was going to leave and she indicated that she was. When I spoke she was standing up against the wall with her bundle under her arm. I presumed she was going to stick to her word and leave when she said she would leave. She didn't. My mistake.
The Chair: Thank you very much.
Ms Murdock: We know it wasn't a ghost that spoke to that previous amendment.
The Chair: We have a government motion next.
Ms Murdock: I move that subsection 15(2) be struck out and the following substituted:
(2) Clause 65(3)(h) of the act is amended by adding at the end "and avoiding any duplication of compensation."
Again, it's self-explanatory but there was some consternation during the public hearings by all sides about whether or not the compensation was Workers' Compensation compensation or Canada pension compensation, and whether or not a person was receiving compensation for the same injury and that kind of thing, and I think this clarifies it.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Ms Murdock? Opposed? Carried.
Ms Murdock: I move that section 15 of the bill be amended by adding the following subsection:
(2.1) Clause 65(3)(i) of the act is amended by adding after "employment" in the last line "and avoiding any duplication of compensation."
The Chair: Discussion?
Ms Murdock: Same thing.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Ms Murdock? Opposed? Carried.
We now come to a PC motion.
Mrs Witmer: I move that subsection 65(3.1) and (3.2) of the Workers' compensation Act, as set out in subsection 15(3) of the bill, be struck out and the following substituted:
"Duties
"(3.1) The Board shall monitor the developments in understanding the relationship between work, injury, occupational disease and workers' compensation,
"(a) so that generally accepted advances in health sciences and related disciplines are reflected in benefits, services, programs and policies in a financially responsible and accountable manner; and
"(b) in order to improve the efficiency and effectiveness of the workers' compensation system and make it more financially responsible and accountable.
"Evaluation of proposed changes
"(3.2) The board shall evaluate the consequences of any proposed change in benefits, services, programs and policies to ensure that the purposes of this act are achieved in a financially responsible and accountable manner."
The reason for this amendment is because, in the absence of entrenching the concept of financial accountability and responsibility in the purpose clause, we are proposing that at this point the act be amended to ensure that the board monitors generally accepted advances in health sciences and related disciplines, and evaluate the consequences of any proposed change in benefits, services, programs and policies with the concept of financial responsibility in mind.
Ms Murdock: Basically, we think the purpose clause does that already, so we won't be supporting this.
The Chair: Further discussion?
Mrs Witmer: This is quick now.
The Chair: Seeing none, all those in favour of the motion by Ms Witmer? Opposed? Defeated.
We now have a government motion.
Ms Murdock: I move that subsections 65(3.1) and (3.2) of the Workers' Compensation Act, as set out in subsection 15(3) of the bill, be amended by striking out "board" in the first lines of subsections 65(3.1) and (3.2) and substituting, in both places, "board of directors".
The reason we did that was because there was some discussion as to whether the responsibility was the board of directors or the corporate body of the board and we wanted to make it clear.
The Chair: Further discussion? Seeing none, all those in favour of the motion by Ms Murdock? Opposed? Carried.
Shall section 15, as amended, carry? Carried.
On section 16: PC motion.
Mrs Witmer: I move that section 65.1 of the Workers' Compensation Act, as set out in section 16 of the bill, be amended by adding the following subsection:
"Effect of repeal
"(5) A policy direction issued under this section ceases to have any effect upon the repeal of this section."
This amendment is to clarify that any policy direction issued by the government may be reviewed, may be amended or revoked by the board of directors upon repeal of this section.
Ms Murdock: Can I just ask some clarification from the critic? May be reviewed, may be repealed -- doesn't the board do that anyway?
Mrs Witmer: Yes. Basically what we would like to do is totally strike out section 16 of the bill.
Ms Murdock: Oh, okay. I should have known.
Mrs Witmer: We feel this section compromises the principle of independent administration of the provisions of the act and giving the minister power for even a one-year period to issue policy directions to the board goes against the concept of self-government of the WCB.
Ms Murdock: Right. Okay.
Mrs Witmer: That's why this has been introduced.
Ms Murdock: There's been a lot of discussion on the whole issue of why the government would want to have control or policy guidance over the board for the year following the bill being enacted.
I don't know how many times I've said this, but I'll say it one more time for the record. The whole point of this, as was discovered in British Columbia when they changed their system, was that British Columbia discovered that for bipartism to work, the board has to have some time together in order to determine what its protocols are going to be and how they're going to operate in situations when there are controversy or confrontation or other kinds of similar issues.
There will be matters where consensus can be reached quite easily, but there will always be issues where they won't be and those protocols have to be in place, so BC found, and the protocols set up by the board members themselves to determine how to operate in situations where there is going to be controversy and you don't want stalemates. The board still has to operate. In the meantime, while they are working out their protocols -- and, as I said, in BC it took them a year for that to occur -- somebody has to do it and that's why this provision is in. As soon as the board has those protocols set up and in place, then this will have no meaning at all.
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Mrs Witmer: I can tell you that the PC Party of Ontario does not even wish to contemplate the possibility of the provincial cabinet acting as the board of directors for the WCB, and obviously that's something that could happen if this section remains unchanged.
The Chair: Further discussion. Seeing no further discussion, all those in favour of the motion by Ms Witmer? Opposed? Defeated.
Shall section 16 carry? Carried.
On section 17, we have a PC motion.
Mrs Witmer: I move that subsection 65.2(2) of the Workers' Compensation Act, as set out in section 17 of the bill, be amended by striking out the first two lines and substituting the following:
"(2) The memorandum of understanding must address, in accordance with the purposes of this act and in a financially responsible and accountable manner, the following matters:"
Again, the substance of this amendment is to ensure that the memorandum of understanding addresses the following matters in accordance with the purposes of this act in, again, a financially responsible and accountable manner.
What we are introducing here once again, as we have attempted to do throughout the course of the amendments we've introduced, is the need for financial responsibility and accountability. In this case we are injecting that into the memorandum of understanding.
Ms Murdock: This is sort of interesting, given the previous amendment. The way I'm reading this, the memorandum of understanding, I think under section 65.2 under the bill, would certainly continue the accountability and the reporting requirements of the board to the minister. But by putting this in, I think what it would be doing is basically giving a lot of power to the minister in the reporting mechanisms. As I said, we believe that the purpose clause already does that and that in terms of negotiating a memorandum of understanding they can put whatever they want in it. Obviously, if the purpose clause says that it's supposed to be done in a financially responsible and accountable manner, now, once this is passed, they will have to do it that way. It doesn't need to be stated legislatively again.
Mrs Witmer: Obviously we differ.
Ms Murdock: Yes.
Mrs Witmer: We can't quite understand why the government is so reluctant to incorporate and ensure that there is a framework for financial accountability and responsibility throughout the document, and that's what we want to ensure happens. I think we all want to make sure there is adequate money available in the future to help the injured workers, so we need to be cognizant of how money is spent and how decisions are made.
Ms Murdock: I'm not disputing that except, why would you bother having a board of directors then? That's what their function is. They're supposed to be doing that. That's their job. If they're supposed to be acting in a financially accountable and responsible manner, then any memorandum of understanding that they would agree on or go into should be on that basis and their decision-making is done in a financially accountable and responsible manner.
Now, having said that, then legislatively you can put the requirement for a memorandum of understanding in, but you don't put the content of the memorandum of understanding in the legislation. They do that contractually themselves. That's the other reason we wouldn't agree.
Mr Arnott: The parliamentary assistant indicates that she has every confidence that all memorandums of understanding will be undertaken with a degree of fiscal accountability, right? That's what you're saying, essentially.
Ms Murdock: The memorandum of understanding is done between the board of directors and the Ministry of Labour. There's going to be a requirement on the board members to act in a financially accountable and responsible manner. The purpose clause is passed and there will be a responsibility on the board members and therefore, I would hope, given what the duties and functions of a board member are, that they would not be going into an agreement where it wouldn't be done in a financially accountable and responsible manner.
Mr Arnott: I guess we agree in terms of what needs to be done. We just want some additional insurance that it will be done, and that's what we're asking. If you agree with it in principle, I fail to understand why it couldn't be reflected in the legislation.
Ms Murdock: But you're saying that instead of saying it once in the legislation, to put it in there as many times as you can. I'm just saying that in legislation you don't need to do that. The requirement, the duty is there legislatively already in the purpose clause and there does not have to be a hit over the skull with a sledgehammer in order for it to be understood that this is their responsibility.
Mr Arnott: I would hope not.
Ms Murdock: I would hope not.
Mr Arnott: I think it would be nice to have this insurance.
Ms Murdock: Legislatively, I don't agree.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by Ms Witmer? Opposed? Defeated.
We now have a PC motion.
Mrs Witmer: I would like to withdraw that motion.
The Chair: Withdraw? No need to. We'll just call it not moved.
Shall section 17 carry? Carried.
On section 18, we have a government motion.
Ms Murdock: I move that section 18 of the bill be struck out and the following substituted:
"18. Section 66 of the act, as amended by the Statutes of Ontario, 1993, chapter 38, section 71, is repealed."
The Chair: Discussion? No discussion. Shall the motion by Ms Murdock carry? Carried.
Shall section 18, as amended, carry? Carried.
Shall section 19 carry? Carried.
Shall section 20 carry? Carried.
On section 21, we have a government motion.
Ms Murdock: I move that subsection 72.1(1) of the Workers' Compensation Act, as set out in section 21 of the bill, be amended by adding the following paragraphs:
"3.1 If a worker or an employer objects to a decision of the board concerning measures or expenditures under section 52.
"6.1 If a worker or an employer objects to a decision of the board under subsection 103(4.1) as to whether the employer has failed to cooperate in vocational rehabilitation services or programs."
Section 21 of the bill establishes that the Workers' Compensation Board may provide mediation services to resolve disputes and stipulates the occasions when the board must provide those. The proposed amendments add to the list of circumstances where a mediation must be provided. I guess basically what it does is it extends the mediation services to situations where potential conflicts may arise.
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The Chair: Further discussion? Seeing no further discussion on the motion by Ms Murdock, all those in favour? Opposed? Carried.
We now have a PC motion.
Mrs Witmer: I move that subsection 72.1(2) of the Workers' Compensation Act, as set out in section 21 of the bill, be struck out.
We'd like to again totally eliminate section 21 of the bill. Basically, since we know it's not possible to do so, this shows our intention to vote against section 21. We believe the emphasis on mediation and return-to-work issues detracts from the board's central function as an adjudicative body. What we see happening is that mediation will be imposed on parties when there may not even be entitlement to workers' compensation. This was certainly never, ever a part of the PLMAC accord and it will be certainly difficult and impractical to administer. Quite a few of the presenters who appeared before us had real concerns about this particular section.
Ms Murdock: I think we've discussed it at great length during the public hearings, even, as to what our position on this is and the savings that would result in to employers by having someone get back on the job, the return-to-work and the rehab provisions, if that can be done through mediation with no lost time. If there's no lost time, then it also means that the premiums to the employer will be that much less in the following year when the assessment is made, so it's to the employers' benefit that this section is in. I must admit I just don't understand some of the employers' concerns regarding this, but anyway, we'll be opposing it.
The Chair: Further discussion? On the motion by Ms Witmer, all those in favour? Opposed? Defeated.
Ms Murdock: Gordon, you have the report.
Mr Mills: Well, it's getting repetitious.
Ms Murdock: Should've brought my report in.
The Chair: We now have a government motion.
Ms Murdock: I move that subsections 72.1(3) and (4) of the Workers' Compensation Act, as set out in section 21 of the bill, be struck out and the following substituted:
"Time limit
"(3) Unless the mediation is successful the board shall finally determine the matter within 60 days after the board receives the objection or application or within such longer period as the board may permit."
The Chair: Discussion?
Ms Murdock: I think it's self-evident.
The Chair: No further discussion? All those in favour of the motion by Ms Murdock? Opposed? Carried.
Ms Murdock: I move that subsection 72.1(5) of the Workers' Compensation Act, as set out in section 21 of the bill, be amended by adding at the end "unless the parties to the application or proceeding consent."
It clarifies that the person who mediates a dispute may, only if the parties consent, participate in other proceedings or the hearing related to the matter being mediated. So it's only with consent.
The Chair: Further discussion? All those in favour of the motion by Ms Murdock? Opposed? Carried.
Shall section 21, as amended, carry? All those in favour? Opposed? Carried.
On section 22, we have a government motion.
Ms Murdock: I move that subsection 76(3) of the act, as set out in subsection 22(1) of the bill, be struck out and the following substituted:
"Liability of directors, officers, employees, etc"
"(3) No action or other proceeding for damages lies against a member of the board of the directors, officer or employee of the board or a person engaged by the board to conduct an examination, test or inquiry or authorized to perform any function for an act or omission done or omitted by him or her in good faith in the execution or intended execution of any power or duty under this act or the regulations."
"Board liability"
"(4) Subsection (1) does not relieve the board of any liability to which it would otherwise be subject."
I'm going to let Sherry Cohen, legal counsel for the Ministry of Labour, explain this.
Ms Sherry Cohen: Currently, under the act the crown is liable for the board when the board or any of its employees or the board of directors is sued for negligence. Given that the board has an arm's-length relationship with government, it has a separate accident fund. The Ministry of the Attorney General did not consider it appropriate for the crown to be paying for actions against the board out of the consolidated revenue fund. What the bill does is remove crown liability and codifies any immunities the board would otherwise have at law when parties sue it.
There was a concern about the wording that perhaps the wording of the bill was giving the board a broader immunity than the courts would give. What the amendment does is simply clarify that they have whatever immunity the common law confers upon them when plaintiffs sue the board. What this means under the transitional provisions is that in any actions against the board or any actions for which notice has been given under the Proceedings Against the Crown Act, parties can no longer sue the crown. They would have to sue the board and the board would have to pay the damages.
The Chair: Further discussion? Seeing no further discussion on the motion by Ms Murdock, all those in favour? Opposed? Carried.
Shall section 22, as amended, carry? Carried.
On section 23, we have a government motion.
Ms Murdock: I move that the English version of subsection 88(3) of the Workers' Compensation Act, as set out in subsection 23(2) of the bill, be amended by adding "committed" after "tort" in the fourth line.
It's a drafting problem that is being corrected. The French version has to be changed to more closely match the English language which reads, "execution of a power or duty under this act -- "
The Chair: Excuse me, Ms Murdock. You did them out of order.
Ms Murdock: I did?
The Chair: Okay. We'll proceed with this one first.
Ms Murdock: Yes, you're right. I should have subsection (2) before subsection (3). Apologies.
The Chair: On the motion.
Ms Murdock: Which motion? Subsection (2)?
The Chair: The first one, the one you read.
Ms Murdock: The one I read is subsection (3). All right.
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The Chair: Straightforward? All those in favour of the motion by Ms Murdock? Opposed? Carried.
Ms Murdock, a government motion?
Ms Murdock: I move that the French version of subsection 88(2) of the Workers' Compensation Act, as set out in subsection 23(2) of the bill, be amended by inserting "par la personne" after "de bonne foi" in the fifth line and by striking out "lui confère ou lui impose" in the last line and substituting "confère ou impose."
It's a translation error.
The Chair: All those in favour of the motion by Ms Murdock? Opposed? Carried.
Shall section 23, as amended, carry? Carried.
On section 24, we have a government amendment. Ms Murdock.
Ms Murdock: I move that subsection 95(1) of the Workers' Compensation Act, as set out in subsection 24(1) of the bill, be struck out and the following substituted:
"Occupational Disease Panel
"(1) The Industrial Disease Standards Panel is continued under the name Occupational Disease Panel in English and Comité des maladies professionnelles in French."
It is self-evident, and it was at their request, I would add.
The Chair: Seeing no further discussion, all those in favour of the motion by Ms Murdock? Opposed? Carried.
A further government motion.
Ms Murdock: I move that section 24 of the bill be amended by adding the following subsection:
"(2.1) Subsection 95(7) of the act is amended by striking out `subsections 76(3) and (4)' in the first line and substituting `subsections 88(2) and (3).'"
It's to correct a drafting error.
The Chair: Further discussion? Seeing none, all those in favour of the motion by Ms Murdock? Opposed? Carried.
Shall section 24, as amended, carry? Carried.
Shall section 25 carry? Carried.
Shall section 26 carry? Carried.
Section 27: We have a government motion. Ms Murdock.
Ms Murdock: I move that subsection 103(4.1) of the Workers' Compensation Act, as set out in section 27 of the bill, be struck out and the following substituted:
"Same
"(4.1) If an employer fails to cooperate in vocational rehabilitation services or programs provided under section 53, the board may add to the amount of any contribution to the accident fund for which the employer is liable an additional amount determined in accordance with subsection (4.2). The board may assess and levy the increased assessment upon the employer.
"Same
"(4.2) The additional amount referred to in subsection (4.1) is an amount equal to a percentage the board considers appropriate of the benefits to which the worker was entitled during the period in which the employer failed to cooperate in vocational rehabilitation services and programs."
The Workers' Compensation Board is able to determine any increase in assessment in accordance with the percentage just for the period of non-cooperation -- I think that's explained fairly clearly -- and the employer's penalty for non-cooperation is defined now with this amendment in the same way the worker's penalty for non-cooperation has been defined all along under section 37. We're introducing the penalty for the employer for the first time in this bill.
Mrs Witmer: We will be voting against section 27 of the bill because we believe the WCB program already ensures a high standard of employer accountability that is presently delivered through a variety of vehicles, including experience rating. As individual claim costs increase, so does an employer's financial exposure; thus a direct accountability is presently established. Additionally, an employer is subject to stringent obligations to re-employ disabled workers.
What this section is suggesting is that there would be undefined fines for undefined crimes, which is an inappropriate and an unprecedented power. These fines, we believe, are unneeded and what they serve to do is to subject business to multiple financial exposures for a single infraction.
I think we need to remember that the WCB was established as a wage replacement benefit program. It continues as such today. If that is indeed the case, it is inappropriate for it to become in effect an employment agency, and that's what this section is suggesting.
The Chair: Response? Seeing no further discussion, all those in favour of the motion by Ms Murdock? Opposed? Carried.
Shall section 27, as amended, carry? Carried.
Section 28: government motion, Ms Murdock.
Ms Murdock: I move that section 103.1(2) of the Workers' Compensation Act, as set out in section 28 of the bill, be struck out and the following substituted:
"Determination of refund or surcharge
"(2) The amount of a refund or surcharge under a program shall be determined by the board based on the work injury frequency of an employer, the accident cost of the employer or both.
"Variation
"(3) The amount of a refund or surcharge may be varied by the board upon consideration of,
"(a) The health and safety practices and other programs of the employer to reduce injuries and occupational diseases;
"(b) vocational rehabilitation practices and programs of the employer;
"(c) practices and programs of the employer to assist workers to return to work; or
"(d) such other matters as the board considers appropriate."
On this, there was a lot of consternation about accident-injury frequency and accident cost. We have addressed those concerns in this amendment. The other thing is that the wording for subsection (3) is exactly as what was in the PLMAC agreement, and it's discretionary.
Mrs Witmer: At this point, I'd like to move for unanimous consent to sit beyond 6 of the clock since we are so close to completion of the debate on Bill 165.
Mr Mills: On that motion, I'm afraid that I can't sit because I'm going to the Confederation dinner at the Constellation, where the three leaders are debating those issues, and I want to be there.
The Chair: We do not have unanimous consent. With the adjournment of the House, this committee stands adjourned until either Wednesday or Monday, depending on the statement on time allocation. I believe it's Monday, though.
The committee adjourned at 1800.