WORKERS' COMPENSATION AMENDMENT ACT (CONTINUED)
The House resumed at 8 p.m.
House in committee of the whole.
WORKERS' COMPENSATION AMENDMENT ACT (CONTINUED)
Resuming consideration of Bill 101, An Act to amend the Workers' Compensation Act.
On section 11:
Mr. Chairman: I believe the minister is going to speak to subsection 45(9) of the act.
Hon. Mr. Ramsay: That is correct, Mr. Chairman. I would like to speak to the concerns of the member for Dovercourt (Mr. Lupusella) in respect to the scale on Canada pension plan benefits.
The board will consult with the Department of National Health and Welfare concerning the reason for a CPP disability pension award and discuss with it whether any portion of the award relates to a disability the board is compensating.
On the basis of this consultation, the board will determine as precisely as possible that portion of the CPP disability pension which is relevant to the work-related disability. The board will then deduct only that identified portion of the CPP pension from the worker's gross pre-injury earnings.
Existing claimants at the date of proclamation will have equal access to the reforms provided in this section, as part III of the bill confirms. They will be entitled to consideration for supplements whether or not they are receiving CPP disability payments. Existing claimants who are receiving CPP disability pensions and who receive supplements will have their entitlements calculated as new claimants would.
I trust this will clarify the concerns expressed by the honourable member.
Mr. Lupusella: Mr. Chairman, I do not have any problem with the consultation process with the federal government, but I still do not understand what the gross pre-injury earnings payments have to do with the calculation of CPP.
I am getting the impression the minister will deal with this particular scale as if the injury had taken place then. I am still confused about how the scale will be applied, even though this consultation process will take place between the board and the federal government in cases where a permanent disability award has already been given to the injured worker. I think this particular section has to do primarily with the pension supplements.
The gross pre-injury earnings payments can easily be understood if the injury is new, but when the deductions take place at the time of the injury and the injured worker receives payments for a certain period of time on a temporary basis, then the board decides to give a permanent disability award to the injured worker who is unable to go back to work as a result of the permanent disability, after a few years the injured worker decides to apply for CPP benefits. He co-operates with the rehabilitation department and becomes eligible for a pension supplement.
I am sorry, but I still do not understand how the scale will be applied. Can the minister explain this further? It is a new injury and the injured worker has no intention at all of applying for CPP unless he is faced with a permanent disability caused by the accident. Then a few years after the initial accident, he decides to apply for CPP. There is a permanent disability pension resulting in a certain amount of money coming from the board. Because the injured person is unable to go back to work for different reasons, perhaps because of the effect of other disabilities not related to the accident, he decides to apply for CPP. Eventually, the injured person will get CPP payments.
There is a pension coming from the board. Then, because of other disabilities, the worker becomes eligible for CPP benefits. The minister's amendment says the board shall have regard only to the payments received by the worker with respect to a disability arising from the injury. The issue of the scale is still confusing me. I need further clarification on how this scale will be applied.
Hon. Mr. Ramsay: Mr. Chairman, I am anxious for the member for Dovercourt to be content in his own mind, so, rather than asking you to call the vote, I will ask you to stand down the vote.
I also ask the member to consult with the representative of the board who is with us this evening and who has been with us all through the committee stage and all through the committee of the whole House. Mr. Cain is totally conversant with the operations of the board. He provided great assistance to all committee members during the hearings before the standing committee on resources development.
As I say, I do not want the vote to be called, if we can stand it down. Meanwhile, the member for Dovercourt can consult and see if he is satisfied. If not, we will have to debate it further and eventually have the vote. Maybe we could move on to the next item.
8:10 p.m.
Mr. Mancini: Mr. Chairman, before we stand this down, this is the section dealing with the CPP, which states that if one has a disability pension for any reason other than the disability for which one is collecting WCB benefits, that disability pension from Ottawa is not interrupted.
Earlier on, an example was used about having a heart ailment when one is getting disability payments for a fractured knee or something such as that.
That is very clear, and that is the intent of the amendment. It is to ensure that anyone collecting Canada pension plan benefits for a reason totally separate from workers' compensation benefits will not have those funds integrated. Our position is that we do not need that in the bill. Why should the government want to have that spelled out? It should not be fooling around with the CPP disability benefits.
For those reasons, we are not prepared to vote for the amendment, no matter how clear or much more clear it becomes. We disapprove in principle of legislation that tells a person he needs a particular pension, for the government not to interfere if he is collecting benefits on something totally unrelated to his injury. This makes no sense.
The government should not be delving into those matters. This matter concerning CPP benefits will be voted against by our party, as we have voted against all the other items of interference in CPP disability payments by this government.
Mr. Chairman: Is it the pleasure of the committee that we stand down the amendment to subsection 45(9) of the act as set out in section 11 of the bill?
Mr. Mancini: No.
Mr. Chairman: All those in favour --
Mr. Mancini: In order to make things run smoothly, Mr. Chairman, we would consent to having it stand down.
Mr. Chairman: I appreciate having the committee's consent to stand that down to accommodate the comments that have been made.
Are there any further comments on or amendments to section 11 as a whole?
Mr. Breaugh: Mr. Chairman, on a point of order: It is causing me a problem that our critic is being briefed under the gallery, and I have not been able to locate his notes. It was the initiative of the minister to stand it down. I want to make sure that a section on which the critic wants to make some remark does not flow by. It would make me more comfortable if we would not have votes while he is being briefed.
Mr. Chairman: We can come back to it. As he passed by the table, we reminded each other that he has an amendment coming up on section 15 of the bill.
Sections 12 to 14, inclusive, agreed to.
On section 15:
Mr. Chairman: Mr. Breaugh moves that section 15(1) be amended by deleting proposed subsection 56(2) of the act,
Mr. Lupusella: Yes, Mr. Chairman. It has already been moved. I would like to make a few remarks on that particular section.
My colleague the member for Nickel Belt (Mr. Laughren) gave an elaborate explanation of why we are moving towards the deletion of this particular subsection of section 56 and I do not think we have to expand the debate any further, We had a prolonged debate when the committee was sitting. The minister was unable to comply with the request that my colleague the member for Nickel Belt made, and then we decided to delete this section altogether.
Mr. Mancini: Mr. Chairman, unfortunately I was not at the committee hearings that the honourable member talks about. I have read his amendment, which is very straightforward. However, I am not quite sure of the reasons for this amendment. Just looking at the bill the way it is, I cannot think of any reason at the present time for voting against what the government has put in front of us, other than that there is quite a bit of patronage at the board and it may cause some people some concern.
If the member for Dovercourt would expand just a little bit on why he has moved the amendment, then we might be able to decide collectively whether or not we are going to favour it, because it might be very important.
Mr. Chairman: Would the member for Dovercourt give us a quick capsule?
Mr. Lupusella: Mr. Chairman, if I have to repeat the content of the extensive debate that took place among committee members. I will be able to do so. There is no doubt in my mind why we are moving towards the deletion of this particular section.
But I do not want to talk about two different topics. With your permission, Mr. Chairman, I would like to go back to subsection 45(9), which is the minister's amendment, because I got the explanation I was looking for. There was no doubt in my mind before going and talking --
Mr. Chairman: With due respect, we had best stick with subsection 15(1), if we may, and clear it away. The member for Essex South (Mr. Mancini) was just asking the member for Dovercourt for a quick summary.
Mr. Lupusella: I am ready to call the vote on that particular section. We had very extensive discussion, and I do not have to repeat the contents of the discussion we had in committee stage.
Mr. Chairman: Are we ready for the question, then?
All those in favour will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
8:20 p.m.
Hon. Mr. Ramsay: Mr. Chairman, I was wondering if I may have the unanimous consent of the House to go backwards a bit. We did this for the member for Essex South last week.
I would like to go back to section 9. It is just a clarification. It is a motion I would like to make for clarification purposes.
Mr. Chairman: Hon. Mr. Ramsay moves that section 36 of the act, as set out in section 9 of the bill, be amended by striking out "death" in the last line of subsection 36(11) and in the sixth line of subsection 36(15) and inserting in lieu thereof in each instance "injury."
Hon. Mr. Ramsay: Perhaps a note on that. Section 36 of the Workers' Compensation Act deals with the compensation of survivors. The wage-related portion of this compensation is based upon the wages of the worker at the time of the injury. To ensure consistency in all the subsections of section 36, I have introduced an amendment to clarify that benefits to survivors are based upon the worker's earnings at the time of injury.
This will amend the current wording of subsections 36(11) and 36(15) to remove their reference to earnings at date of death. Failure to make corrections could lead to a potential situation where benefits are calculated on artificially low earnings the deceased might have received in the period after the injury and immediately prior to death.
Section 9, as amended, agreed to.
Mr. Chairman: Now we are back to section 15, unless it is the pleasure of the committee to deal with subsection 45(9) of the act. That was stood down.
Mr. Lupusella: If we can, Mr. Chairman, I do not mind dealing with subsection 45(9), as set out in section 11 of the bill.
On section 11:
Mr. Lupusella: I got the explanation I was looking for even though there was no misunderstanding in my mind about the repercussions of this amendment. I was a great believer that the particular amendment introduced by the minister would greatly improve the situation of injured workers, particularly injured workers who are applying for the Canada pension plan. Eventually, they seek rehabilitation or a supplement that must be granted by the board. The terms and conditions of the supplement are clearly spelled out in different sections of the act.
We cannot deal with this particular section in isolation. I want to be more specific. The minister should be aware of the process of calculating the amount of a supplement for an injured worker who is eligible and who meets the criteria, which means he has to co-operate, he must be available for medical and vocational rehabilitation and so on.
Subsection 45(6), which was previously dealt with, talks about calculating the amount of the supplement. I do not want to read all of subsection 45(6), but it is so interrelated with the minister's amendment that it is worth bringing to his attention how the amount of the supplement is calculated.
Subsection 45(6) says: "...the board shall have regard to the difference between the net average earnings of the worker before the accident and the net average earnings after the accident and the compensation shall be a weekly or other periodic payment of 90 per cent of the difference but the sum total of such supplement and the award under subsection (1) shall not exceed the like proportion of the 90 per cent of the worker's pre-accident net average earnings and the board shall have regard to the effect of inflation on the pre-accident earnings rate and to any payments the worker receives under the Canada pension plan."
I think we are faced with a contradiction within the law. My colleague the member for Nickel Belt stated on several occasions under different sections of the act that either one gives the right to the injured worker or one does not give it at all.
As a result of the power given to the board to implement subsection 46(6), which is the clear guideline or thermometer to calculate the amount of money the injured worker has to receive in relation to the principle of a pension supplement, then the contradiction comes in relation to the principle which is spelled out in subsection 45(9) of the act.
Even though we understand the Canada pension plan, based on the introduction of this particular section, is not a bar and injured workers are not penalized, they are penalized even though this particular subsection is in place. Subsection (6) is really the best indicator of how the scale will be implemented to find out how much the injured worker has to receive in relation to the principle of a pension supplement.
Going back to our concerns, we are leaving in contradictory rules which are going to dominate the destiny and benefits of injured workers. Instead of being rectified or clarified on behalf of injured workers, the law is becoming more confusing because the discretionary power of the board will eventually prevail to decide the total amount of money which the injured worker has to receive under different sections of the act.
Going back to the same principle, I really do not see too much difference. I went to talk to the board's officials just for the benefit of understanding the process. Subsection 45(9) states, "...the Canada pension plan shall not be a bar to receiving payments under clause 40(2)(b)..." Then under subsection 45(6) receiving the Canada pension plan is a bar from receiving further benefits from the board, which in our example is the pension supplement.
I really do not understand why we have to confuse the situation on behalf of injured workers. We have been talking about the principle of reshaping the rules on injuries across Ontario, but as far as I am concerned, in relation to Bill 101 the marginal improvements contained in it will eventually be taken away by extra power given to the board to decide how much money the injured worker has to receive. Under subsection 45(6), the Canada pension plan is a bar.
8:30 p.m.
Subsection 45(9), which is the minister's amendment, states that the CPP is not a bar to receiving different benefits related to the pension supplement. The mathematical process that would be in place is clear in my mind. Using my own example, if a person has to receive a 30 per cent disability award, which is the clinical rating system given to the injured worker, and he or she applies for a pension supplement, what the board is going to do is to take into consideration subsection 45(6).
That is the economic indicator to determine how much money the Workers' Compensation Board has to give to the injured worker in relation to the pension supplement. Even though he or she receives Canada pension plan benefits, the amount of money which is strictly related to the compensable injury -- in our case the 30 per cent -- then the 70 per cent will be deducted applying the mathematical process of subsection 45(6).
This means the 30 per cent is something the board will recognize as a process in which the injured worker has been affected by the injury arising from his or her employment. Eventually, the 70 per cent disability brings the total to 100 per cent because of other disabilities not related to or arising from the initial injury. Of course, the board does not give a damn about it, but it has to take into consideration the whole calculation and the whole process. The 30 per cent will be taken into consideration in my particular example, in which there is no particular deduction. However, the 70 per cent, to top up to 100 per cent, will be implemented in subsection 45(6).
We are again faced with penalties, considering the past history of the board in determining the clinical rating system usually given to injured workers. Knowing that the majority of injuries range from five, nine or 10 per cent, to 15 per cent for back injuries or whatever, unless the injury is more serious and one might reach 20 per cent, it is a penalty that is imposed on injured workers.
To be fair to the minister, there is a small marginal improvement because it clarifies the whole process of the board for injured workers and how the calculation has to be made in relation to the issue of the pension supplement and the relationship with the Canada pension plan. It is a slight improvement.
This does not motivate us a great deal, because the CPP payment eventually will be a deduction from the total amount of money that injured workers are supposed to receive under the principle of pension supplements. I thought it would really be a great improvement. I want to be fair and frank with the minister; it is just a minor improvement that clarifies the process for the board as to how to calculate the CPP in the light of subsection 45(6).
I thought that the minister, in announcing this amendment, would be motivating me to commend him for what he had done in relation to section 45(9), which is the minister's amendment.
Mr. Chairman: May we agree to move to Mr. Ramsay's amendment to section 45(9) of the act, as set out in section 11 of the bill? We had stood it down. The member for Dovercourt has completed his remarks. Are there any further remarks?
All those in favour of the amendment will please say "aye."
All those opposed will please say "nay."
In my opinion the ayes have it.
Motion agreed to.
Sections 15 to 27, inclusive, agreed to.
On section 28:
Mr. Chairman: Mr. Lupusella moves that section 28 of the bill be amended by replacing in the first line of the proposed subsection 77(5) of the act the word "medical" with the word "any."
Mr. Lupusella: Mr. Chairman, in subsection 77(5) we are talking about access to medical information by employers. We had a prolonged discussion about the issue. The minister was unable to change his position in relation to medical reports. We pursued the principle that medical information should not be released to employers and we gave the different reasons. Even though the issue of granting access to the employer will go eventually to the appeals system, I do not think the employer should have the right to know what is going on in relation to medical information which is strictly confidential.
We are trying to amend this particular subsection by substituting for the word "medical" the word "any." There was a particular contention during the course of the debate that the board will give access to the employer to medical information which will just be material related to the case in dispute. Several arguments have been made that employers must have such access to medical information to have the opportunity to defend the case before the appeals tribunal.
8:40 p.m.
I know that the number of employers appealing cases before the board has increased in the past few years and that under Bill 101 employers will have an opportunity to receive assistance from the Workers' Compensation Board to look after their own appeals as well.
I am sure the harassment process that will take place against injured workers will be enormous. I am sure time will tell us about the detrimental effects of subsection 77(5). I can easily visualize the tremendous increase in the bureaucracy at the board level because of the number of appeals that will be presented before the appeals tribunal, the adjudicator, the appeal board, the claims review branch or whatever.
I know the minister will not change his mind; we were unable to change his mind when the committee was engaged in the debate on the content of this subsection. However, I am urging other members to support our amendment because it is a fair amendment.
Mr. Mancini: Mr. Chairman, we have no problem in supporting the amendment that has been put forward. We cannot see why the injured worker should not be informed when confidential and private information about himself or herself is given out at the request not just of the employer but of any person. I do not view this as an employee-employer matter; it is a matter of confidentiality, which we should adhere to at all levels of government.
If information is contained in a file and if that file is in the hands of the government, no one should have access to it until the minister agrees that access should be given or until a hearing is held and it is deemed that this information is necessary for the purpose of an appeal or something of that nature. We have no trouble supporting the amendment.
Mr. Laughren: Mr. Chairman, I thought the minister was going to engage himself at least minimally in the debate.
Mr. Mancini: He is disengaged.
Mr. Chairman: All those in favour of Mr. Lupusella's amendment to section 28 will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
Mr. Chairman: Before we deal with the minister's matter on section 25, can we have the committee's concurrence to go back to section 11? We never did quite carry it, as amended, and we probably should address that. May we?
Agreed to.
On section 11:
Mr. Chairman: Shall section 11, as amended, form part of the bill? We never dealt with section 11.
Mr. Lupusella: Will you please bring to our attention which section it is? Is this section 11 of the bill, proposed section 45(9) of the act?
Mr. Chairman: Yes. We carried the amendment, but we have never voted on the actual section 11. Shall section 11, as amended, stand as part of the bill?
All those in favour will please say "aye."
All those opposed will please say "nay."
In my opinion the ayes have it.
Motion agreed to.
Section 11, as amended, agreed to.
Mr. Chairman: Is there an agreement that we reopen section 25? The minister has an amendment, and perhaps we should deal with that. It would tidy things up.
Agreed to.
On section 25:
Hon. Mr. Ramsay: Mr. Chairman, this is a housekeeping amendment. We moved so quickly from section 15 to section 28 that I was totally befuddled and missed out completely here.
Mr. Chairman: Hon. Mr. Ramsay moves that section 25 of the bill be struck out and the following substituted therefor:
"Subsection 72(1) of the said act is repealed and the following substituted therefor:
"'(1) In accordance with personnel policies approved from time to time by the board of directors of the board, the chairman, subject to such guidelines as may be established by the Management Board of Cabinet and subject to the provisions of the Crown Employees Collective Bargaining Act, may establish job classifications, personnel qualifications and ranges for remuneration and benefits for consultants, actuaries, accountants, experts, officers and employees of the board and the chairman may appoint, promote and employ the same in conformity with the classifications, qualifications and ranges for remuneration and benefits established by the chairman.
Hon. Mr. Ramsay: Mr. Chairman, this amendment provides that the chairman of the Workers' Compensation Board may appoint staff and fix their remuneration, benefits and classifications according to guidelines established by Management Board of Cabinet and subject to the Crown Employees Collective Bargaining Act.
Later in this debate, I will be introducing similar amendments applying to staffing of the appeals tribunal, in section 32 of the bill, and of the industrial disease standards panel, also in section 32 of the bill. Staffing and salary policies are currently subject to the approval of the Lieutenant Governor in Council.
8:50 p.m.
Mr. Mancini: Mr. Chairman, I do not have any objections to the amendment made by the minister. This is going to bring everything together in a more cohesive way and people will know what they are doing as far as staffing and setting up salaries are concerned.
The only thing I would like to mention relates to the fact that it refers to "such guidelines as may be established by the Management Board of Cabinet." Over the past year and even longer, we have seen that none of the ministers adhere to the guidelines established by the Management Board of Cabinet. Many cases have been brought up where the guidelines have been contravened and where no real explanation has been given as to why the guidelines were not followed.
If we are going to ask the Workers' Compensation Board to conduct its business as per these guidelines, I suggest to the members of cabinet they should lead the way in ensuring in the future that they conduct their own business as per the guidelines established by the Management Board of Cabinet, because we may run into trouble with some of these crown corporations. We may have had a problem with the Urban Transportation Development Corp. We do not want people jetting around the province spending taxpayers' money, establishing salaries and hiring consultants which in no way reflect the guidelines. We want the guidelines followed. That is why they are going to be in this bill.
I guess we can assume the minister will inform the chairman of the Workers' Compensation Board that some members of the House have raised these concerns and that in the annual reports we expect to receive statements from the executives of the board that they have adhered to all these guidelines. I do not want to embarrass any ministers who lately have not adhered to the guidelines. I would not want to mention anyone in particular, although there may be one or two here tonight whom I could point out.
Hon. Mr. Ramsay: Perhaps I can offer a quick clarification. As I understand it, the present circumstances --
Mr. Laughren: The minister's quick clarifications turn into filibusters.
Hon. Mr. Ramsay: I can never win. Either I talk too much or I talk too little; there is never any halfway point.
The amendment I have introduced basically adds the word "benefits" to the act; before it said "remuneration." We want "remuneration" and "benefits" in it.
Motion agreed to.
Section 25, as amended, agreed to.
Sections 29 to 31, inclusive, agreed to,
On section 32:
The Deputy Chairman: Hon. Mr. Ramsay moves that subsection 86b(3) of the act, as set out in section 32 of the bill, be struck out and the following substituted therefor:
"(3) The chairman of the appeals tribunal, subject to such guidelines as may be established by the Management Board of Cabinet and subject to the provisions of the Crown Employees Collective Bargaining Act, may establish job classifications, personnel classifications and ranges for remuneration and benefits for officers and employees of the appeals tribunal, and the chairman may appoint, promote and employ the same in conformity with the classifications. qualifications and ranges for remuneration and benefits so established by the chairman.
Mr. Lupusella: Mr. Chairman, unless I have a different act from the one from which the minister is reading, subsection 86b(3) is already printed in Bill 101. Is the minister reintroducing sections that have already been passed by the committee? This subsection is already printed in Bill 101.
The Deputy Chairman: I would ask the minister to respond. Maybe the member for Dovercourt could repeat his question.
Mr. Lupusella: Am I correct that subsection 86b(3) is already printed on page 22 of Bill 101? What is the difference between this section and the amendment being proposed by the minister?
Hon. Mr. Ramsay: I am sorry?
Mr. Lupusella: I was asking whether subsection 86b(3) was already printed on page 22 of the bill.
Hon. Mr. Ramsay: The change is from "salary" to "remuneration and benefits.' I thought I made that clear on the last one. "Remuneration and benefits" replaces the word "salary."
Mr. Lupusella: I apologize for that, but I would like to remind the minister that I did not receive a copy of the amendments he is introducing tonight. Maybe that is why there has been confusion. It is not our fault.
Hon. Mr. Ramsay: The government whip was bothering me.
Mr. Laughren: He bothers a lot of us.
Mr. Martel: We will call a quorum and he will have to bring in the government members.
The Deputy Chairman: We will ask the honourable whip to -- really, I would like to give him a lecture on that one. There has to be some order around here. When a minister is involved with a piece of legislation, we would like to have him paying attention.
Mr. Laughren: Mr. Chairman, on a point of order: We would be happy to stand down the business of the House while you lecture the whip.
The Deputy Chairman: I was just doing that with great pleasure. Having started and ended that, is there anything further in this transaction, Minister?
Hon. Mr. Ramsay: No.
Motion agreed to.
9 p.m.
The Deputy Chairman: Mr. Lupusella moves that section 32 be amended by adding to the proposed subsection 86g(3) the words, "Nothing in this section shall diminish the right of a worker to appeal to the Ombudsman."
Mr. Lupusella: If one reads subsection 86g(3), it appears that our amendment may not seem to be appropriate because of the procedure already in place that any decision that goes before the new independent appeals tribunal can eventually be sent to the Ombudsman. This process will be used by many injured workers in the future.
We have moved this amendment in order to place the process into the law. Again, we do not want to leave it to the whim of the Workers' Compensation Board to implement policies. The law should be understood and in place and not left to the whim of the cabinet or the Workers' Compensation Board.
When we are dealing with the Workers' Compensation Board, we are dealing with a different set of rules. We are complicating the law because the board has the discretionary power to change policies at the whim of the government or the people sitting on the corporate board. We disagree with this approach. We must include whatever we can in the law to make it more clear and more readily understood by ordinary citizens, and in particular by the ordinary workers in Ontario.
The Attorney General (Mr. McMurtry) was trying to simplify the judicial system by incorporating a small claims court action in which people could go to defend themselves. This is a simple act that would open doors to discretionary powers, which we enunciated in a different debate. The present Workers' Compensation Act leaves injured workers in limbo. They have to study a complicated set of policies spelled out on a regular basis by different meetings at the board level. Then they have to read the law, which is unclear because the final power is in the hands of the board. Then they appear before an appeal board, the new appeals tribunal or the independent medical review panel, but the board still has the power and the injured worker may receive only certain benefits under Bill 101.
When he appeals the issue before the board, the injured worker will be in a losing position. If he is able to convince the people sitting at the different levels of the appeals system, he might have a case that he can win; but if the people who are sitting, for example on the appeals tribunal, did not have a good sleep the night before, they might decide not to allow the appeal and the injured worker will lose. Why? Because the board will have the power to decide, because the law is not clear, because this type of law cannot be reached by the ordinary citizens of Ontario.
We understand the reasons and the interests behind this bill. Employers across Ontario, or the big corporations, are protected by the Progressive Conservative government, and even though this political message is not clearly spelled out in the bill, we understand the motivation and why the minister is so adamant not to change the discretionary power given to the board. That is the main reason. I think he should be condemned, not only by us but by all injured workers across Ontario.
We again make a simple request that our amendment pass. For a moment, the Minister of Labour should forget the interests he is protecting, those of the big employers, companies and corporations across Ontario, and should think about those of the injured workers, who are regular citizens.
Poor people do not understand the judicial system. When they appear before the board, it must have clear guidelines so it will say: "We have to give you this right. There is no sense in your appearing before us because it is an automatic process that the right be granted to you in the light of the principles spelled out in Bill 101."
As long as we leave discretionary power in the hands of the board, injured workers are wasting their time in the appeal system. lf they had a nice sleep or took a Valium pill to have a nice rest, eventually they would win the appeal. As a result of Bill 101 and the discretionary power that is incorporated and is in the hands of the board, there is no way an injured worker will win the appeal or my friend the member for Nickel Belt will win the case.
Mr. Mancini: I have reviewed the amendment submitted by my friend the member for Dovercourt and I have looked at the bill. I do not find anything offensive about the amendment.
Mr. Laughren: I do.
Mr. Mancini: Does the member find offensive the amendment by a member of his party? I do not find anything offensive about it. However, I would like to point out that I think we are duplicating things because it is the right of the Ombudsman to review any final decision of any agency or any decision-making body of Ontario. It is his right to review a decision once he has been requested to do so.
It is not a question of putting this request into law. It is already in law. That is why we have the Ombudsman and why we let him spend $5 million of our money a year. It is not just to catalogue all the complaints he gets, although sometimes we think that is all that is done with the money. He has that right under law. It is a simple, straightforward procedure. Once an agency of the government makes a final decision, the matter can be turned over to the Ombudsman.
Mr. Cooke: Thank God the Ombudsman is here; he can win the appeals the member loses.
Mr. Mancini: I lose few appeals. I probably win more appeals than some of the members of the New Democratic Party, particularly the ones from Windsor. I hear the member for Windsor-Riverside (Mr. Cooke) wins hardly a single appeal. He should be thrown out of office and a Liberal elected so that some of those injured workers can win some of the appeals.
Mr. Martel: The member's friend has not fought one in 11 years; the member who sits directly behind the member for Essex South.
Mr. Mancini: He is doing well. The member for Sudbury East should not worry about it.
As I was saying before I was so rudely interrupted by members of the New Democratic Party, the benefit the member spoke about is already in law. I have no objections to the member's amendment. It repeats what is already in law. Those are my comments. I think I will have to vote against it.
9:10 p.m.
Mr. Laughren: Mr. Chairman, I have real problems with this amendment by my colleague for the simple reason I do not believe it goes far enough. My colleague's amendment states, "Nothing in this section shall diminish the right of a worker to appeal to the Ombudsman." I will support my colleague because he is my colleague and also because he is improving the section. However, I think it would not be asking too much to have added to the section "and that after every decision of the tribunal the worker must be informed in writing that he or she has the right to appeal to the Ombudsman."
My colleague the member for Dovercourt, who knows more about injured workers' problems than anybody else in the province, knows full well that a lot of injured workers are not aware of the niceties of the law. Therefore, while I support what my colleague has done, I would even go a step further and make it a requirement that the board inform every injured worker who loses that final stage of appeal that he or she has a right to appeal to the Ombudsman.
Hon. Mr. Ramsay: Mr. Chairman, perhaps I can add to the comments by the member for Essex South, because I agree completely with what he had to say. It is not necessary to specify a right of recourse to the Ombudsman in the Workers' Compensation Act since the Ombudsman's office is available to any resident of Ontario who has a grievance against an administrative tribunal's decision. The policies and procedures of the Ombudsman's office are clearly set out in the Ombudsman Act.
Mr. Martel: Mr. Chairman, let me say to the minister that when it goes to the review committee and the review committee denies the claimant's application for benefits, he is then advised in writing that he has the right to appeal and that this is the procedure for appealing.
What my colleagues are saying to the minister is that surely when a worker loses a case at the final appeal level, the Workers' Compensation Board should advise him, as it does after the review committee findings, that he has the right to take it to the Ombudsman and that it can be done in this way, this way or this way. That would ensure that a worker who loses -- and many do not have representation when they go to an appeal -- knows full well that, should he lose it at the final level of appeal, he has the right to take it to the Ombudsman. He should be notified, as is done with the review system now.
That is what my colleagues are saying. My colleague the member for Nickel Belt said he would have surpassed what my colleague the member for Dovercourt meant. If the minister does not want to write it down, surely it should be instituted as a policy at the board that the worker be advised that he can and should take this to the Ombudsman. That is not done at present.
Hon. Mr. Ramsay: It is certainly done in my office, because I handle a large volume --
Mr. Martel: I handle as many as you do, but you and I do not handle them all.
Hon. Mr. Ramsay: Wait a minute; hear me out, please. I am not referring to my constituency office versus the member's constituency office. Let me finish and I will get it all sorted out.
I am referring to my office on 400 University Avenue as Minister of Labour, and therefore I am not comparing my constituency office with the member's, with respect. I am sure he handles many more cases, because he does everything so much better than I do.
Mr. Martel: You are trying to disarm me now.
Mr. Laughren: He will be impossible to live with now.
Mr. Breaugh: Take that back.
Hon. Mr. Ramsay: What I have been attempting to say is that in my office, where I do have dozens and dozens of inquiries from workers and from members of this Legislature seeking assistance, we have a policy that we always advise them of the role of the Ombudsman.
Mr. Laughren: I do not understand what the minister is saying. Is he saying the board does inform every injured worker who loses an appeal?
Mr. Martel: His office does.
Hon. Mr. Ramsay: My office.
Mr. Laughren: The minister's office, with all due respect, is not the one that makes the decision on the appeal -- at least, I do not think it is -- so I do not know what relevance that has to the debate at all.
The point we are trying to make is that when a worker loses the final level of appeal, he or she should be informed: "This is not the end of the world. If you are dissatisfied, write to the Ombudsman and have the Ombudsman take a look at it."
We all know the Ombudsman will not deal with a compensation problem unless it has gone through all the levels of appeal. All we are asking is that along with the note that says you have lost your appeal there should be a statement that you now have an opportunity, if you so desire, to appeal to the Office of the Ombudsman. That is all. It is not a lot to ask.
Hon. Mr. Ramsay: Mr. Chairman, if I recall correctly, because I always hang on every word he says, the member for Sudbury East (Mr. Martel) mentioned that if this could not be written into the act, it could be policy. I will make a commitment this evening to see if it can be a policy with the board.
Mr. Chairman: We now have a motion before us. Does any other member wish to participate in the debate?
Mr. Mancini: Mr. Chairman, before you call for the motion, we have been assured the minister is going to instruct the Workers' Compensation Board that when a final decision is made it will include some kind of pamphlet or notice that workers have the right to appeal to the Ombudsman, which is then going to become another appeal level. That is okay, because the injured workers should have every chance possible to make a presentation on something as serious as their injuries. That is fine.
If that is going to be done, I am not so sure we need the amendment. I do not find the amendment offensive, but I do not think the Office of the Ombudsman is as great as some of us are trying to make it here tonight. If we want to add another 100 staff to the Ombudsman's office, that is fine, but I do not see any difference between these bureaucrats -- and they are all bureaucrats at the Ombudsman's office -- and the bureaucrats who work for the Minister of Labour or the bureaucrats who work for the WCB. I see them all pretty well in the same light.
I want to stress that I am not anxious to take away anyone's appeal right for another kick at the can. If the minister is going to instruct the board to inform these people they do have this right, then my friend the member for Sudbury East will not have to inform as many people as he does and neither I nor the minister will have to. It will all be done in a fine, uniform fashion. I have to go along with that.
I cannot accept, however, that we should try to pretend here tonight that by sending this over to the Office of the Ombudsman for a final kick at the can we are automatically going to see all kinds of great things in justice because they are all such wonderful experts at the Ombudsman's office.
Mr. Lupusella: Mr. Chairman, with the greatest respect, I feel compelled to clarify the position of the honourable member. We cannot have it both ways. I do not pretend this amendment is the greatest, but I think the member did not understand our contention which is spelled out under this particular section.
The member is talking about increasing another bureaucracy on a different level. It has to be understood that the present system already allows injured workers to follow this route. We are not pro the increase of another bureaucracy. The bureaucracy is there. Injured workers have the right to go to this particular bureaucracy and to launch a complaint when they have exhausted the final stage of the appeals system.
What we are saying in this section is that something that is a matter of policy now should be incorporated within the principle of the law. I am trying to clarify the thoughts of the member for Essex South. I do not expect he will perceive the great value of this amendment because the member for Dovercourt placed it, but I think he has to understand the process. That process is in place and injured workers use it on a daily basis. We are only asking for legal recognition of something that is now part of the board's policy and is not part of the legal framework spelled out by Bill 101.
9:20 p.m.
Mr. Laughren: Mr. Chairman, I am concerned because I think we are witnessing here another act of -- this time I would call it a filibuster of intransigence. All we are doing here is saying what is already a fact, namely, that workers can appeal to the Ombudsman after the final level of appeal, but those same workers should be told about that right.
I do not see anything in this amendment, or at least in what we are suggesting should be done, that should concern the minister. All we are saying is the right is already there for the workers, so for heaven's sake, let us tell them about it. Why would the minister keep a right such as that under a bushel basket? Why not let the light shine upon it? That is all we are saying.
I do not understand why the minister insists on sitting there in his stolid intransigence. He only rises to his feet to filibuster when he sees it will suit his purposes. There is nothing to prevent him from saying he believes the workers should be told about this right. The right is already there; for heaven's sake, tell them about it. That is all we are asking.
Hon. Mr. Ramsay: I indicated just a few moments ago I was prepared to accept the suggestion of the member for Sudbury East.
Mr. Laughren: I did not hear the minister say that.
Hon. Mr. Ramsay: I did. I said I hang on every word the member for Sudbury East says. I recall him saying, "If this cannot be written in the act, let us see if it can be policy at the board." I said that sounds like a good suggestion.
Most of the member's suggestions are good ones and that is why I picked up on it right away. I am prepared to follow along on that.
Mr. Lupusella: Mr. Chairman, I was planning to clarify the position of the member for Essex South; I think I have to clarify the position of the minister also.
Mr. Mancini: Mr. Chairman, on a point of order: I do not need another member of the House to clarify my position. If the member for Dovercourt has something to say for himself, by all means have him say whatever is on his mind, but he does not have to clarify my position.
Mr. Lupusella: The minister did not get the message from my amendment. I am trying to clarify the minister's position that although he is going to comply with the request by the member for Sudbury East, I want to remind him that these parts of the policy process are implemented by the board.
The Ombudsman Act gives an injured worker the right to follow this route. By accepting this amendment, the minister will be paralleling a principle of the law which has already been enacted and passed by the Legislature, that is, the Ombudsman Act.
The minister is talking about policies. I think he is using the wrong approach again.
The Deputy Chairman: All those in favour of Mr. Lupusella's amendment to subsection 86g(3) of the act, as set out in section 32 of the bill, will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Mr. Laughren: A point of order. Mr. Chairman.
The Deputy Chairman: I did not see anyone standing. It was not stacked.
Mr. Laughren: Mr. Chairman, I am raising a brand new point of order. Is it within the rules of this House that the minister can vote against an amendment that is already basically part of the act?
The Deputy Chairman: That does not need to be answered. We now proceed to another amendment.
Hon. Mr. Ramsay moved that section 86n of the act, as set out in section 32 of the bill, be struck out and the following substituted therefor:
"86n(1). Where a decision of the appeals tribunal turns upon an interpretation of the policy and general law of this act, the board of directors of the board may, in its discretion, review and determine the issue of interpretation of the policy and general law of this act and may direct the appeals tribunal to reconsider the matter in light of the determination of the board of directors.
"(2) Where the board of directors of the board in the exercise of its discretion under subsection (1) considers that a review is warranted, it shall either hold a hearing and afford the parties likely to be affected by its determination an opportunity to make oral and written submissions or it may dispense with a hearing if it permits the parties likely to be affected by its determination to make written submissions as the board may direct.
"(3) The board of directors of the board shall give its determination and direction, if any, under this section in writing, together with its reasons therefor.
"(4) Pending its determination, the board of directors of the board with respect to the decision that is the subject matter of the review may stay the enforcement or execution of the order made under the decision or may vacate the order if it has been implemented."
Hon. Mr. Ramsay: Mr. Chairman, during the proceedings in the standing committee, there was considerable discussion on those provisions of the bill which relate to the role and powers of the new appeals tribunal.
While I think it is fair to say the government's proposals were generally greeted with approval, there were some concerns expressed in regard to the possible exercise of the corporate board's powers under section 86n of the act to stay the enforcement or execution of an order of the appeals tribunal and to direct the tribunal to reconsider its decision.
While the board's powers under this section are confined to situations where the tribunals decision turns on an interpretation of the policy and general law of the act, nevertheless it was argued the board could in effect overrule the new appeals body and thus possibly prejudice the latter's independence.
Of particular concern was the fact that this procedure could apparently occur in circumstances where the ability to make representations to the board was not explicitly contemplated and in the absence of any requirement being placed upon the board to justify its actions.
Having given careful consideration to the questions raised regarding the wording in section 86n as originally proposed, I have moved an amendment to that section which I believe will address the legitimate concerns expressed. The revised wording places a clear obligation on the board to render in writing its decision and any consequent order made under this section, together with its reasons.
In addition, subsection 86n(2) now explicitly recognizes the opportunity to make oral or written submissions as a possible alternative to a hearing, should the board determine that review of an appeals tribunal decision is warranted. The board's powers to review a decision of the appeals tribunal are confined, as before, only to situations where an interpretation of the policy and general law of the act is at issue.
At the same time, I am confident the revised wording will serve to enhance the protective features of the provision while still retaining its original intent.
Mr. Laughren: I think I might have supported the minister's amendment until he got into all his legalese at the end. We cannot support this amendment because the minister leaves one great big gaping hole at the beginning through which one could drive a feller-buncher.
Hon. Mr. Ashe: A who?
Mr. Laughren: A large truck. The minister then proceeds to try to patch it up in the rest of the amendment. The very beginning of the amendment reads, "Where a decision of the appeals tribunal turns upon an interpretation of the policy and general law of this act, the board of directors of the board may, in its discretion, review and determine the issue and interpretation of the policy...."
9:30 p.m.
If the appeals tribunal makes a decision that somehow is in conflict with the policy of the board, then this section says the board may review and make a determination of that issue. If the appeals tribunal that is out there is closer to the problems of the injured workers than is the board -- I would think it is because it is dealing with those problems everyday -- and if the appeals tribunal feels there is a policy of the board that is contrary to the interests of injured workers and it makes a decision that is in conflict with the policy of the board, then I do not think the board has the discretion to say: "We will ignore that; we will ignore that appeal decision because it raises certain questions that bother us."
That is what bothers me. The minister leaves the word "may" at the beginning of the amendment so that anything else that follows is predicated upon the word "may." That is nonsense. The minister is not doing anything. He is accomplishing nothing, because the board can decide in its infinite wisdom that it will not make a review of that decision, which turns upon the policy of the board.
What kind of nonsense is that? He is kidding the troops. He should either change that word to "shall" or forget about the rest of his amendment; scrap the bloody amendment, because it does not mean anything as long as the word "may" is in it.
I would like to know whether the minister understands what I am saying, whether he sees why the rest of his amendment does not mean anything as long as he has the word "may" at the beginning. We tried to deal with this in the committee, and when I saw that the minister was moving an amendment to this section, I thought: "Eureka! The minister has seen the light and understands that this should not be discretionary." He has given the board enough discretionary powers all through this bill without adding to them here.
I would like to know from the minister whether he is prepared to make this change so that when the appeals tribunal makes a decision that is contrary to the existing policy of the board, the board then must -- shall -- make a determination and review the issue of the interpretation of the policy that the appeals tribunal's decision appeared to revoke. I would like to know whether the minister is prepared to make that kind of amendment before I continue with my brief remarks.
Hon. Mr. Ramsay: No, I am not.
The Deputy Chairman: Did you hear the answer?
Mr. Laughren: No. All I heard was "no." I did not hear the reason.
Hon. Mr. Ramsay: No reason.
Mr. Laughren: No reason? Then I guess the minister did not understand me. I will try again.
This section says that the appeals tribunal can make a decision, and it might be on an industrial disease, for example. Let me give an example that will be helpful. At the present time, if somebody who worked in the sintering plant in Sudbury gets lung cancer he must show he worked in that sintering plant for a period, and it is divided into a particular year. Before that year he must have worked there six months, I think.
Mr. Martel: Three.
Mr. Laughren: Three months. Another period of time is six months, I believe, there is a split period of time. The appeals tribunal may decide this worker has worked there only five months where the six-month rule applies and it may say: "We think this is a silly, arbitrary rule. How can you say that six months can cause cancer but five months would not, or that six months can cause cancer and five months and 28 days would not cause cancer in the sintering plant? We think that is a silly argument. We think this worker's spouse," as would usually be the case with a sintering plant, "should be awarded a pension because that worker was exposed to carcinogens at the sintering plant."
If that is the decision of the appeals tribunal, the minister is saying the board has no obligation to review it. It will just pretend that decision was not made. How can he consider that fair? Does he not think the appeals tribunal is making a statement to the board when it makes that kind of decision?
I think it is. I have used an example I am familiar with, but I am sure there are all sorts of examples other members here could use to tell the minister why, when the appeals tribunal makes a decision that runs contrary to the policy of the board, it is trying to tell the board something. If the board sits there and says, "We are not going to deal with this; it may be against the policy of the board, but we are going to let that decision stand and we are not going to review it," how is that fair?
The minister is saying to the appeals tribunal, "We will not accept messages from you, except when we decide to accept them." That is total nonsense. Once again, the minister is having the best of both worlds. When it suits the purposes of the Workers' Compensation Board and the Employers' Council on Workers' Compensation, the decision will be made in that regard.
Let me use another example. If a worker in the work place was exposed for seven months and the appeals tribunal turned the worker down, then the board would have the right to review the decision and say, "Maybe it should not be seven months." I agree I am giving the worst case scenario to make my point, but believe me, that is the kind of thing that can happen if the minister allows this section to stay the way it is now. I think that is fundamentally wrong.
Surely to goodness, it is not asking too much to have the board review the policy whenever the appeals tribunal makes a decision that is contrary to the policy of the board. It can work both for and against the injured worker. I accept that fact. I am prepared to take that gamble on behalf of injured workers. The minister has now got it both ways and he is giving it both ways to the board. We think that is fundamentally wrong.
I ask the minister once again to change the word "may" to "shall." Then when a policy of the board is challenged by the appeals tribunal, the board of directors must review that decision and see what should be done and why that policy has been challenged by the appeals tribunal. The minister should remember it is an independent appeals tribunal.
The minister should say: "All right, this independent appeals tribunal has made a statement to us and the board. We should not ignore that statement. We should review it." The minister may end up not changing anything, but at least the decision will have been reviewed. The board has been forced to take a look at the policy that led the appeals tribunal to challenge it. I do not think that is at all unreasonable. I do not think it is asking too much of the minister or of the compensation board or of the people who fund the board. Will the minister not reconsider?
Hon. Mr. Ramsay: Mr. Chairman, this matter was discussed at length at the committee stage. I made a commitment to look at it and I did so most sincerely. I feel I have come back with a very reasonable amendment. We are having the same argument that has been going on since we started this bill, that is, over the two words "may" and "shall." Wherever that has come up within the act, we have had a debate on it.
In compliance with the commitment I made to the standing committee on resources development that I would look at this matter, I have looked at it and I am not prepared to change the position I have outlined here this evening.
Mr. Laughren: With all due respect, we are not dealing with the same old argument over the words "may" and "shall." Every single time we get into a debate on "may" and "shall," it is in regard to a different principle. We have not been repetitive on this argument at all.
Hon. Mr. Ashe: Yes, the member has.
Mr. Laughren: I do not expect the Minister of Government Services to understand.
Mr. Martel: He does not know what he is talking about.
Mr. Laughren: What is even more scary is that he might understand.
Hon. Mr. Ashe: That is true.
Mr. Laughren: Ignorance is bliss in the minister's case.
Hon. Mr. Ashe: The member would know.
Mr. Laughren: Mr. Chairman, would you tell the Minister of Government Services not to be provocative? He is turning my crank.
The Deputy Chairman: I ask the minister to stop being provocative.
Interjections.
The Deputy Chairman: Order. The honourable member has the floor. Have you finished?
Mr. Laughren: I wish I was finished on this section.
Mr. Conway: You wish you were finished.
Mr. Laughren: I wish I were finished on this section. I thank the member for Renfrew North for correcting my grammar.
Mr. Martel: The leader of all Liberals.
Mr. Laughren: Yes, the leader of all Ontario Liberals.
Mr. Martel: All two of them.
9:40 p.m.
Mr. Laughren: I am disappointed in the performance of the minister during this debate. On the very amendments that would be the easiest for him to accept, he has looked the other way. By "easiest," I do not mean shucking off his responsibility; I mean amendments that would not cost money but simply bring some sanity to the bill. He has decided he is going to hold the line, no matter what arguments are put forth. He sits there in stolid silence and acknowledges the debate by saying he has decided not to change his mind and therefore is not going to accept our amendments.
We have accepted some of his amendments in the spirit of compromise, yet he is not willing to accept any number of amendments we put forth that are most reasonable. I would not think the minister would say this was an unreasonable amendment if we could get him to admit it. I do not believe he thinks it is unreasonable. It is simply an amendment that requires the board to look at policies that its own tribunal challenges. What is unreasonable about that? If it were me, I would want to look at it again.
Hon. Mr. Ramsay: Mr. Chairman, I will make one final attempt to clarify or sustain my position.
Honourable members should bear in mind that the corporate board will be tripartite in membership; it is to be the prime policymaking organ of the WCB. This body must have the discretion to choose whether it will review a particular policy or policy issue raised in the external appeals tribunal. This discretion is limited in subsection 86n(2) by the requirement for a hearing or for written representations about the policy issue to be reviewed, It would not be appropriate to require the corporate board to review every policy issue raised in the appeals tribunal.
Mr. Laughren: That is terribly misleading, because we are not saying everything raised in the appeals tribunal must be reviewed by the board.
Mr. Chairman: Order. The honourable member knows full well that word is not to be used in that context. Your exact words as I heard them were, "That is terribly misleading." You are referring to the minister's remarks; so I have to ask you to withdraw them.
Mr. Laughren: I am sorry. I will withdraw the word "terribly."
Mr. Barlow: He does not take offence at "terribly." It is the other word.
Mr. Laughren: I withdraw that, I did not even realize I had said it, Mr. Chairman.
It is very unfair for the minister to say the board does not want to challenge everything that is done by the appeals tribunal. That is really unfair. All we are saying is that the board should review the decisions of the appeals tribunal that are contrary to the existing policies of the board. What is unreasonable about that?
I would think that when the appeals tribunal makes a decision, it would be very much aware of the policies on which the board must base its decisions. It would only be in extreme cases that the tribunal would feel there was an injustice one way or the other and that the existing policy of the board would not allow it to make an appeals decision that was fair. That is the only time we would run into it. I would not think we would run into that very often, but when we do, it is terribly important that the board be required to review its policy. It may happen half a dozen times a year, if that.
Why would the minister not want the board to review those policies? If I were chairman of the board or even Minister of Labour -- which my colleague the member for Dovercourt keeps telling me I will be some day; however, he has not cleared that with the member for Hamilton East (Mr. Mackenzie) -- I would want to review those policies in my own self-interest, not just in the interest of injured workers. I would say to myself: "Wait a minute now. Here is a body that has decided it is going to challenge this. Even though it is dealing with our board and our policies, it has challenged this policy. Why not review it then?" That is something that defies logic.
I am going to sit down and hope my colleague the member for Sudbury East can convince the minister. I know the minister hangs on his every word.
Mr. Martel: Mr. Chairman, my colleague said it could work the other way; it well could if the board would look at the appeal.
Just in the past week I wrote to the minister regarding a case of white-hand syndrome. On white-hand syndrome, the board has a stupid, obnoxious and dumb policy that is contrary to the present body of medical information. The present body of information from some of the world's leading medical experts indicates that white-hand syndrome can occur when a man is relatively young, but it does not manifest itself until the man ages. However, the board has this absolutely stupid criterion that says the worker has to be working in the work place for two years prior to the time he makes his application for benefits.
One of the world's leading experts is in the minister's office; I know that from talking to other doctors, such as Dr. Jim Nethercott at the occupational health centre. He tells me that one of the people in the minister's office is one of the two leading experts in the world. Jim Nethercott also tells me that in his discussions with one of the board's doctors he learned that the ageing process will make the problem manifest itself four, five, six or seven years down the line.
Somebody should review that policy. In my letter to the minister during the past week, I asked him to go to one of the leading experts and get the latest body of opinion. The Workers' Compensation Board knows it is wrong. The compensation board knows there is a body of medical opinion that is contrary to its current criteria for that disease. However, because of its bullheadedness, it will not budge one iota.
What my colleague is saying is that there has to be something that makes it mandatory for someone to look at something like that. Under the present system, that does not happen. Under the new system, despite the panel and despite everything the minister is saying, somebody has to make it mandatory -- and it is going to become more relevant as we get into less accidents and more of the industrial diseases -- that somebody has to take a look at the criteria in those areas of dispute. That has to happen not just when somebody decides willy-nilly, "Maybe I will look at it," but when there is a body of opinion that is contrary to the board's policy. At present, nothing triggers it. Even under the new act, there is nothing that makes it mandatory to look at it. What we are saying to the minister is, "Make it mandatory."
Someone says every decision would have to be looked at. I do not know which bureaucrat wrote that for the minister, but whoever the hell sent that message in two minutes ago, I resent it and I hope the minister resents it, because it is stupid and it is the sort of attitude that prevails at the board. We are not suggesting that the board look at every decision; my colleague says that when it is contrary to board policy, there has to be something that makes it mandatory that it be examined. I hope the minister will not hang his hat on the silly little statement that was tied on the end: "We will have to look into everything that goes wrong with every appeal." That is silly, and anybody who writes that is silly.
That is part of the problem when one goes to the Workers' Compensation Board. Even when one can take new evidence from world-renowned medical experts, the board will hang fast to its position until some study paper is done. All we are asking the minister to do is to make it mandatory -- not "maybe" but "shall" -- so we can get the answer as quickly as possible to assist the afflicted worker as well as the board and the minister in order that it does not have to come across my desk and then on to the minister's desk.
The board should be out in the forefront looking for problems. I am afraid it never has, and I only have to remind the minister of Wilco. It never has been there feeding the Ministry of Labour with the information the Minister of Labour needs to do his job. If the board were in a foot race, the race would be over before it got started in some instances. They have all that body of information, but they never pass it on to anyone; they hoard and hide it and workers suffer the consequences of that.
9:50 p.m.
I say to the minister that he should make it mandatory that if a policy is wrong, it will be looked into. That is all. He is not going to have a whole lot of cases; it is only when one gets down to a point that somebody has got to look at it seriously. I want to tell the minister that has not happened during the life of this board without tremendous pressure, and we do not think we have to go through that. We do not think we should have to go through an Elliot Lake; we do not think we should have to go through a sintering plant in Sudbury; and we do not think we should have to go through a Johns-Manville. Something should be mandatory to make them look at it. That is all we are asking.
Hon. Mr. Ramsay: I have perhaps two points. I truly regret that the member found it necessary to make some inflammatory remarks about a member of my personal staff for whom I have the highest of regard and who is a most dedicated and competent individual.
Mr. Martel: Then he should not have sent silly notes in.
Mr. Chairman: The minister has the floor.
Hon. Mr. Ramsay: The other point I would like to make to the member is that he has lost sight of the fact that the industrial disease standards panel will have responsibility for reviewing board criteria in the matters he has discussed.
Mr. Lupusella: Mr. Chairman, I would like to remind the member for Sudbury East not to lose his temper, because he will be wasting his time. He will not be able to convince the minister to change his mind, and he is aware of that, although he has been very constructive in his criticism.
The member for Nickel Belt has been trying to be very convincing about the argument that has been made so many times today about the use of the word "may" instead of the word "shall." The minister might easily say we have been repetitive and we argued this issue so many times today, but the use of this word in different sections has widespread implications of which I am sure the minister is aware. He does not want to admit he is wrong. I am convinced we have been trying to be very constructive in suggesting amendments to the bill. We want to smooth the bureaucracy that exists at the board level, and under Bill 101, we are going to be faced with another bureaucracy.
I would like to use another example which might enlighten the minister in relation to what we are talking about. We know for a fact that the board is there to set up policies and to interpret the content of this legislation or the old legislation. In the Workers' Compensation Act there are obscure notes about the law, and then the policy clarifies the law that will be passed under Bill 101.
On the issue of commutation, and I think this argument has been made, when an injured worker has been assessed as a result of the clinical rating system by the pension department and the injured worker is asking for a commutation of his or her pension -- let us talk about commutation when the injured person has to pay a mortgage on his or her house -- one of the criteria which the injured person has to meet is that the commutation will be allowed by the board in the case where the injured worker is on the verge of losing his or her house.
As far as I am concerned, that policy is wrong. If the minister accepts our amendment to change "may" to "shall," the independent tribunal can take a look and say, "There is no part of the present Workers' Compensation Act that spells out the principle that commutation should be given to an injured worker to pay his or her mortgage, and there is no clear indication in law that the injured person has to lose his or her house before commutation is accepted by the Workers' Compensation Board."
How many times and for how long are injured workers supposed to lose appeal after appeal in which the request for commutation is denied because they have to demonstrate they are on the verge of losing their houses and that there is no way they can pay off the existing mortgages?
I gave to the minister, and I brought to the attention of the board's representative, a clear example of an injured worker who was supposed to renew a mortgage and the WCB did not accept the request for commutation of his pension. He was seeking money from financial institutions to pay off the mortgage. He applied to the board to get commutation of his partial pension. The request was denied. What was the basis? It was because the person was not on the verge of losing his house. It is a wrong policy. Thousands and thousands of injured workers have lost their cases before the appeal system because of that wrong policy.
If we make it mandatory that this policy be an issue or dispute which an independent tribunal has to review, as far as I am concerned there is no principle in the new act that spells out that the injured person has to lose his house before getting commutation to deal with his mortgage payments.
I do not want to talk about the other criteria that are combined with that principle. As far as I understand that principle, even the other criteria are completely wrong and do not really reflect the principle spelled out in the act.
We have tried to be very constructive. We have debated this issue. We have given examples to the minister. We have brought the problems to the attention of the board's representatives. I do not know how long this policy about commutation has been in place. The board does not have any recollection about how many people have lost their cases when their requests for commutation were denied. The history is that injured workers are suffering the consequences of something that is socially wrong.
They are not asking for extra money. They are asking for something that is within the principle of their pensions and that has been recognized by the board. We are not talking about increasing their pensions. We are asking that an injured worker, if he so desires, have the right to get the pension in the form of commutation to pay off the mortgage on his house.
If we make it mandatory by changing "may" to "shall," there is a mechanism within the structure that reviews the policy made by the corporate board; and if there is something wrong, at least the mechanism makes sure it gives the message to the corporate board that the policy must be reviewed because it contravenes the principle of the old or the new act.
10 p.m.
If the minister is questioning that we have not been constructive on recommendations that will enrich the present act as a form of this type of amendment, I think he got the wrong message. He made up his mind on different issues and introduced his own amendments, which he thinks are the best amendments. He is not willing to listen to the opposition at all.
Mr. Chairman: Shall Mr. Ramsay's amendment to subsection 86n(1) of the act as set out in section 32 of the bill carry?
All those in favour will please say "aye."
All those opposed will please say "nay."
In my opinion the ayes have it.
Vote stacked.
Mr. Chairman: Mr. Lupusella moves that subsection 86n(2) of the act as set out in section 32 of the bill be amended by replacing the words "may, in its discretion" with the word "shall."
Mr. Lupusella: Mr. Chairman, I would like to remind the minister that he has to visualize a hypothetical situation which might be true some day. Let us pretend that the member for Nickel Belt will be the Minister of Labour some day and he will say this is a housekeeping amendment which should be supported.
Mr. Chairman: All those in favour of Mr. Lupusella's amendment to section 32 will please say "aye."
Those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
Mr. Chairman: Hon. Mr. Ramsay moves that subsection 86p(5) of the act as set out in section 32 of the bill be struck out and the following substituted therefor:
"The chairman of the board, subject to such guidelines as may be established by Management Board of Cabinet and subject to the provisions of the Crown Employees Collective Bargaining Act, may establish job classifications, personnel qualifications and ranges for remuneration and benefits for officers and employees of the panel, and the chairman may appoint, promote and employ the same in conformity with the classifications, qualifications and ranges for remuneration and benefits so established by the chairman."
Hon. Mr. Ramsay: Mr. Chairman, the same explanation applies here as for the amendments that I moved earlier to sections 32 and 25.
Mr. Laughren: Mr. Chairman, in the hope that we will be regarded as a model for the Minister of Labour, in the spirit of co-operation we will agree with the amendment put forth by the minister. We can only hope -- we cannot hold him to any kind of arrangement -- that he will understand and support our amendments as we go through the rest of this bill.
Mr. Haggerty: Mr. Chairman, did I understand the minister in his amendment to leave out the word "salary"? Am I correct?
Hon. Mr. Ramsay: That is correct. We replaced it with "remuneration and benefits." We wanted to get in the benefits.
Mr. Haggerty: I did not hear that part.
Hon. Mr. Ramsay: Yes, it is in there.
Motion agreed to.
Mr. Haggerty: Are we going down to subsection 6 or 7?
Mr. Chairman: We are at 86p.
Mr. Lupusella moves the proposed sections 86q and 86r as set out in section 32 of the bill be amended by replacing the words "Minister of Labour" with the words "Attorney General."
Mr. Lupusella: Mr. Chairman, I will be relatively--
Mr. Haggerty: Mr. Chairman, on a point of order: I want to direct a question to the minister on subsection 86p(7).
Mr. Chairman: Where does the member wish to make comment?
Mr. Haggerty: I do not know. That is what I have in my book. You jumped about four or five --
Mr. Chairman: We are at section 32.
Mr. Lupusella: Mr. Chairman, I think the member would like to make a few comments on subsection 86h(7). Am I correct?
Mr. Haggerty: On subsection 86p(7).
Mr. Wildman: Have we passed that?
Mr. Chairman: No.
Mr. Haggerty: Mr. Chairman, I want to direct a question to the minister. I mentioned it when we were discussing the beginning of the act on second reading. I was concerned about subsection 86p(1), which says, "There is hereby constituted a panel to be known as an industrial disease standards panel."
In clause 86p(7)(a), it says, "To investigate possible industrial diseases," and in 86p(7)(b), "To make findings as to whether a probable connection exists between a disease and an industrial process, trade or occupation."
At the beginning of the bill, subsection 1(5) says, "Any of the diseases mentioned in schedule 3 or 4." I do not have a copy of the Workers' Compensation Act before me, but all I find in the old act is schedule 3.
What are we looking at in schedule 4? What are we talking about? Are we talking about new industrial diseases that will be defined by regulation or what? I would like to know that.
Hon. Mr. Ramsay: With respect, I am not quite sure what the member for Erie is trying to get at in his question.
Mr. Haggerty: There is a schedule 3 for industrial diseases in the Workers' Compensation Act. It could be benzine, carbon monoxide, nickel, carbonyl -- there is a lot of lead in that -- which are already defined.
However, I do not see any schedule 4. The minister must be proposing something new in this bill. I would like to know what he is proposing in schedule 4. Are we looking at new industrial diseases? Are we looking at chronic bronchitis, for example, which is not in the old act? Are we looking at other areas which are not defined in "respiratory diseases"?
10:10 p.m.
Hon. Mr. Ramsay: Mr. Chairman, I believe I can respond to the member. This is a new panel. It is going to be composed of "not more than nine persons, including persons representative of the public and scientific communities, as well as technical and professional persons." I am reading that right from the act because I think it is very important.
It is open-ended. The matters that will be referred to it relative to industrial disease are unlimited. This is one of the really bright features of the new act and the new administration at the board. It is something that is overdue and something that will be very productive. We will have a group of experts who will be able to look at just about anything that is referred to them, and they will have the opportunity to seek outside help as well.
Mr. Haggerty: Mr. Chairman, the minister probably has the information I am looking for. I am looking at section 86p, in which we are talking about setting up an industrial disease standards panel. I am relating it to the section of the act that says, "any of the diseases mentioned in schedule 3 or 4." Under the old act schedule 4 is not mentioned, so the minister must be setting up another category. That is correct?
Hon. Mr. Ramsay: Yes. That is correct. There is another category and there will be diseases that will be specified by regulation under schedule 4.
Mr. Haggerty: That is what I was concerned about. Under the old act there is no mention of chronic bronchitis, which is a respiratory disease. There is nothing there that says one could have cancer of the larynx, but if one has cancer of the tonsils it is not included. What begins first? Where does it start? If it starts in the tonsils and develops further in the larynx, it is not covered under the act. A number of case studies have been done showing this development does take place.
One can have a certain type of cancer that may affect the lungs and it will travel through the whole system. It may end up in the liver or the kidneys. It is not covered under the act, and yet it is a type of cancer that spreads and is not confined to one particular area.
This has caused enough problems at the Workers' Compensation Board and in determinations by the medical profession. Some will argue that one cannot draw a line between the two. If it starts in the tonsils, it will no doubt go to the larynx. I would like to see something put in the bill or done in the regulations about this.
That is one of the faults I find with the legislation we have. We can pass a section of the bill saying, "Yes, the intent is good," but we never see the regulations until the final results, and that may come two or three years down the road before we understand the full intent of this disease panel.
During the minister's estimates I mentioned the Dupré commission report on asbestos. There is an expert at the Workers' Compensation Board who has drawn his conclusions from the report, and he is just about saying, "It is nothing but a whitewash." All three of the commissioners have reviewed the problems of asbestos over a number of years, and he says, "I cannot accept their recommendations."
One can look to someplace in Europe and pick out an expert there who says one thing and then pick out somebody else in the United States who says something else. We really are not resolving the problem at all when we have to have someone make an appeal in which one can have these things pulled out of mid-air and say that because this person says it, it does not apply under the Workers' Compensation Act.
The minister should be defining this now. The intent of the new act is to define some of this right now without causing long delays and appeals. I would like to see something tonight on that.
Hon. Mr. Ramsay: Mr. Chairman, they will be defined by regulation, and the regulation comes long after the act. We will try to do it just as expeditiously as possible and we will certainly take into consideration what the honourable member has had to say.
Mr. Lupusella: Mr. Chairman, I moved an amendment.
Mr. Chairman: It has been moved. This was on sections 86q and 86r?
Mr. Lupusella: It is to replace the words "Minister of Labour" with the words "Attorney General."
I have nothing else to add beyond telling the minister that my Minister of Labour, the member for Nickel Belt, would say on moving this amendment that it is in line with the principle of housekeeping amendments and the principle of conflict of interest. That is why we are particularly concerned in moving this specific amendment.
Mr. Laughren: Mr. Chairman, I would like to thank the future chairman of the Workers' Compensation Board for his kind remarks. My colleague the member for Dovercourt has moved this amendment because we do not believe that an arm's-length relationship exists between the Ministry of Labour and the Workers' Compensation Board. I believe there is ample evidence of that as the minister sits at his place defending the policies of the Workers' Compensation Board.
It has nothing to do with my fervent hope that the Attorney General will become the next leader of the Ontario Conservative Party. I will not get involved in the internal politics of the governing party of this province. But I do believe that if we used the model of the community legal clinics, we would have independent bodies there that could look after the interests of workers, namely, worker advisors or employer advisers, whichever the case may be. There is an advantage in both cases, whether it be a worker adviser or an employer adviser, in having a greater distance between the board and the worker advisers or the employer advisers.
We simply do not think it is appropriate to have them work for the Ministry of Labour. I have never seen the minister attempt to put distance between himself and the Workers' Compensation Board, and that is why, in order to --
Mr. Chairman: May we inquire whether the member expects his comments to be very long?
Mr. Laughren: I will close my remarks simply by saying we did this because we wanted a greater arm's-length distance between the worker and employer advisers and the Workers' Compensation Board. We think that is in everyone's best interests, and that is why we have moved this amendment.
Mr. Chairman: All those in favour of Mr. Lupusella's amendment to sections 86q and 86r will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
Mr. Chairman: Can we carry sections 33 to 36? The next amendment is to section 37.
We have an agreement. It is 10:15.
10:27 p.m.
The committee divided on Mr. Lupusella's amendment to section 28, which was negatived on the following vote:
Ayes 28; nays 47.
Section 28 agreed to.
On section 32:
The committee divided on Hon. Mr. Ramsay's amendment to section 86n of the act, which was agreed to on the same vote reversed.
The committee divided on Mr. Lupusella's amendment to subsection 86n(2) of the act, which was negatived on the following vote:
Ayes 17; nays 58.
The committee divided on Mr. Lupusella's amendments to sections 86q and 86r of the act, which were negatived on the following vote:
Ayes 28; nays 47.
Section 32, as amended, agreed to.
On motion by Hon. Mr. Wells, the committee reported progress.
BUSINESS OF THE HOUSE
Hon. Mr. Wells: Mr. Speaker, I thought I might remind the House that tomorrow afternoon we will not be continuing with this bill, but we will be dealing with the Liberal no-confidence motion in the name of the member for Renfrew North (Mr. Conway), which he will have the pleasure of reading tomorrow, with a division at 5:50 p.m. In the evening, we will deal with third readings of Bills 77, 93, 109, 145, 149, 147 and 119, followed by second reading and committee of the whole of Bill 138.
The House adjourned at 10:30 p.m.