Workers' Compensation Board

Staff Present: TR, GG, OE, GS, SN, PL

Notetaker: Steven Noble

Date: Tuesday, April 7, 1998

• General Topic area is Scope of Coverage: What is covered and who is covered?

• JOHN STEEVES
• Mr. Chair as Mr. Robertson indicated I am covering on behalf of the BC Federation of Labour two coverage issues – what is covered and who is covered and as Mr. Robertson indicated I go first, Mr. Winter, and then Mr. Sayre. And then we get a chance to do a rebuttal and reply and so I am looking at Section 2 of the written submission that was provided to you. And again I apologize for the pagination but it is section 2, page one and starting of with what is covered by workers' compensation we have a general introduction there entitled as it happens:
• What are Covered as Compensable Injuries and Diseases?
• And we say as a starting point that it is extremely important that the scope of compensation extend to all of the injuries and diseases that arise from employment. This is important for at least two reasons. You’ll recall the – comments of the Minister of Labour in the Social Credit Government in 1972 that the purpose of the legislation was to expand the coverage of compensation to more and more people and our comments are in that context as well. So two reasons that we put forth for expanding coverage are:
• First, if society is to have mechanisms to prevent injuries and diseases that are related to work there must be some system of economic incentives to prevent them from happening again, and, in serious cases, there must be a system to go further and write Orders or even prosecute. Some employers will do the right thing to prevent injuries and diseases simply because it is the right thing to do but there must be some mechanism to apply to those who do not do the right thing. The system we have for preventing occupational health and safety hazards ties claims to prevention as best we can so that an unsafe workplace is more expensive to operate than a safe workplace.
• The other reason is to re-visit Mr. Justice Sloane’s comment about the "grim aftermath" that results from work related injuries and diseases that do not come under a workers’ compensation system. Society as a whole has an interest and we think an expectation that work related disabilities will be looked after by a fair system of compensation.
• It follows from this that to exclude specific diseases or injuries from the workers’ compensation system – as some propose – is to reduce to eliminate the normal incentives to prevent these injuries and diseases. When the medical and factual evidence supports a relationship between a disease or injury and the work it is illogical and arbitrary to exclude that condition from the prevention rules that would normally apply to that condition.
• Q: What do you mean?
• A: I guess the question is what is the logic that you apply? If the logic is to try to prevent the disease then yes that is the case.
• Q: I guess where I’m coming from in this question is to say that if there are for whatever policy reasons a – if there is a justifiable basis to define a specific condition is not compensable does it necessarily mean that it should not be by legislation declared preventable?
• A: Well, I suppose that’s – there’s a logic to that – I – but – and it may be for employers to say that why should they work on preventing diseases that don’t come under the compensation side of the system and you might want to ask them that?
• Q: Did you mention that that if you exclude a specific condition that it will necessarily mean that incentives to prevent them from appearing will disappear and I suppose logically that if there is not a cost to compensate it might be arguable that the incentive is diminished but could that not to some extent be replaced by an obligation to prevent legislatively imposed nonetheless?
• A: So the concept is that it wouldn’t be – compensation wouldn’t be available but there would be some prevention strategy to….
• Q: Yes, for a given condition whatever it might be.
• Q: Well, I – I hadn’t thought of that – it seems to me that if – I guess a question from the workers’ point of view would be what happens when the worker does suffer an injury or a disease as a result of that and that’s precisely the point that we want to prevent. So I guess if where this goes is that if there is some way you can separate compensation and prevention – I’m not sure there is – I haven’t put my mind to it but perhaps we can develop that over the next couple of weeks but it seems to me that they are very closely and if not intimately connected.
• Q: All right; can you clarify a question – I’ve read your paper over on Sunday and along the line of the Judge’s question – that it seems to me that what you are suggesting is supportive of an experience rating assessment concept. And that is – it is experience rating assessment would be the negative incentive that would cause employers to take preventative action against certain diseases. Does that go hand in hand with your saying if you exclude diseases you lose the deterrence of the experience rating assessment?
• A: In part, we don’t’ take the position that experience rating assessment should be thrown out; we think that in principle there is something valid in experience rating assessment – we think that there are a number of problems with that and we are coming to that in the funding system but so in part that’s part of – that’s what we’re saying but also simply having – quite apart from experience rating assessment – there’s a claim over a fatal matter at work which seems to me that that’s – we talked about this when we were examining the Board about sharing of information that we would hope that it would lead to inspection right away so that is quite distinct from experience rating assessment – it is more – it is experience rating assessment partly and you know the problems with it but it’s also the ability to connect again the compensation side with the prevention side and send someone out straight away in a serious case.
• Q: Are you talking about focus on the compensable aspects of the disease or injury – a focus of prevention on it?
• A: Yes. Yes and that goes to our position that compensable – compensation and prevention should be in the same organization and in the same Act.
• Q: Which is the more important in your – you and your clients’ judgement – experience rating assessment and the financial incentive aspect of it or the focusing of the problem?
• A: ah I think the focusing – I think the merging – the merging of the information between compensation and prevention for the purposes of tagging situations – as you say focusing.
• Going back to our submission:
• Further, such an exclusion would result in the people suffering from these injuries and diseases being left to their own devices for economic loss, medical aid and rehabilitation. All of the previous commissions have reminded us that society expects a fair system of compensation to take care of disabled workers and they should not be left to their own scarce resources.
• A final introductory point on this issue is to note that the Act and policy apply to a range of situations. Most claims involving coverage issues will be resolved simply and usually in favour of the worker without any controversy. But a small number may be controversial and the results in those cases may even be surprising to people not familiar with the system. A couple of examples here:
• There are situations where a worker is impaired when injured on the job – whether through alcohol or drugs or something else. Board policy – and I give you a cite there (Section 16.10 of the Manual) covers this issue and essentially the approach is that if there is something in the work that is of causative significance for the injury, then the claim may be acceptable. However, if the injury was solely the result of impairment, then the claim may not be acceptable. Another example, is the fire fighter who had a compensable heart attack while on holidays – and this becomes something of minor legend I gather before the Commission. To some this does not seem sensible. But, again, Board policy (Section 26.20) covers this issue and it is based on gradual exposure and latency periods and in the context of the specialized nature of worker’s compensation, the policy is sensible.
• The point there is that the exposure to risk factors that cause heart attack happens over time and the actual onset of the heart attack need not necessarily occur at work in order for it to be compensable. The point here is that there may be unusual cases but these should not be a reason for large-scale change in the system. Each issue has to be decided on its own merits. We next talk about:
• NORMAL BODY MOTION
• And you may recall the discussion with the Board and this issue has vexed Workers' Compensation Boards for some time. As Decision 2 pointed out,
• The problem, of course, is that the activities of men are not neatly divisible into two clear categories, their employment functions and their personal lives. There is a broad intersection and overlap between work and personal affairs, and somewhere in that broad area we must map the perimeter of workers' compensation (1 WCR 7).
• Current Board policy is contained in section 15.20 of the Manual, Just by the way Mr. Chair where you see Manual is the Rehabilitation Services and Claims Manual – unless I otherwise refer to it – it says there that:
• Claims of the kind here must be adjudicated with great care. Nevertheless, the necessity for the exercise of judgement will result occasionally in what may appear to be inconsistency or the application of slightly different criteria. This is inevitable in any situation where it is virtually impossible to draw a line. (Page 3-9).
• We accept the complications of these types of claims and for the reasons given above but to a much lesser extent than is made out in the policy.
• When we heard from the Board in February an example was used. The example was a worker who drops a tool while working at a workbench at work and the motion causes an inquiry to his back during the motion of picking up the tool. This was described as a "grey area" and the following statement was made,
• One side is that it is a work-related motion. The other side of the debate is that activity is a motion that occurs in daily living. Unless there is an unusualness in bending down it doesn’t bring it within the scope of employment.
• Reference was made to Decisions 99, 115, 121, 145 and others.
• Our concern is with the "side of the debate" that says there has to be some "unusualness" to bring the motion into the employment situation and therefore make any injuries resulting from the motion compensable. And I think you will see over the next few days Mr. Chairman that this unusualness is a theme in workers' compensation – for example you see it in psychological injuries – the so-called chronic stress injuries that there has to be something additional in the work and so this is another example of that. As acknowledged by the Board there are decisions where this "side of the debate" prevails and we submit it is contrary to policy and the Act.
• Section 5(1) authorizes compensation for personal injury or death "arising out of and in the course of employment". There are two aspects to this requirement: the injury has to occur in the course of employment and it has to arise out of the employment before compensation can be paid. As section 15.20 of the Manual points out (page 3-9) the addition of "arising out of" along with "in the course of" must be given some meaning. The usual meaning attached to "arising out of the" employment is that "causation cannot be measured solely by the fact of employment…clearly something more is required".
• This means that, to use the usual example, when a worker turns his head out of curiosity while at work and suffers a muscle strain there would not be an injury "arising out of " the employment and the injury would not be compensable. As Board Policy states,
  "To be an injury arising out of the employment, there must be something in the employment that had a particular significance in producing the injury."
• It is the requirement of something of "particular significance" that causes the most difficulty.
• As the Board indicated there are situations where a claim is denied because a worker injures his back when he bends over to pick up a tool that was dropped. This should not happen because Board policy also states,
• "if a worker bends down to pick up an object, and that motion is required by the job (e.g. a piece of debris while on clean-up, a piece of mail while working in the mail room, an item of equipment or machinery in a plant)[emphasis added]
• Any injury from that motion might "establish some work causation". The language is overly cautious – and this is part of the problem in our view – but the point is that a claim for compensation would be acceptable. And I give you a couple of decisions there of which support that view.
• This conclusion is supported by the following decisions:

1. Decision 115 – A worker was taking a shower at the end of a shift and suffered an injury while applying pressure to the neck. The decision is not clear but the shower appears to have been on the employer’s premises. It was held to be arising out of and in the course of employment. (2 WCR 97).
2. Decision 145 – A worker had been bending down to lift some doors and then felt pain in her back after the lifting. The claim was accepted. "If a job requires a particular motion, and that motion results in injury, the injury arises out of the employment and is compensable". (2 WCR 171 at 174).

• While there are some difficulties when considering normal body motions at work, in our submission, the situations are not as complex as reflected in Board policy. Indeed we suggest that one of the reasons for the difficulty in adjudicating these types of claims is the overly complicated policy of the Board.
• At some point decisions have to be made on the basis of the best possible policy and it does not assist consistent decision making to have policy that is ambiguous and complicated. The Act has to be complied with but there also has to be a balance between straightforward and effective decision making and costly and complicated decision making. In the course of answering questions the Board acknowledged the need for new policy direction on this issue. And we just end up this section with a statement:
• In general, we believe the Board’s policy on normal body motions makes sense. However, we have some concerns with the application of that policy. And we actually struggled with this Mr. Chairman and this will be – since we seem to be starting off here I think one of the things we all struggle with is – in – using this specific example we see I guess to put it as clearly as how can you solve problems of ineffective or overly zealous or timid administration or policy? And we started off with – in our previous recommendation that you get into the policy and you change it and you make it more simplified and we make that recommendation. And we ended up with this but so I guess what we are doing here is highlighting for your concern and specifically as an example of where Board policy and we’ll get into the Board practices and policies later on – Board policy becomes something much more complicated than it should be.
• Q: You are not suggesting that the classic phrase "arising out of and in the course of employment" that is used in a number of jurisdictions be altered at all?
• A: We are not saying that it should be deleted, no.
• Q: Well, there is one jurisdiction I recall, I’m not sure if it is a Canadian one or not that says "arising out of or in the course of employment" – that would broaden it considerably – that would – it would be either/or – you are not suggesting anything like that? As I gather, that phrase – you are simply highlighting that there are difficulties that arise in some cases with respect to the application of that test but the test itself is sound?
• A: Yes.
• With respect to other issues that were discussed under this topic – psychological injury, need for non-rebuttable presumptions, chronic pain, protective reassignment we will be dealing with those in other sections. We thought we would make more sense to pull them together and deal with them all at once. I –
• Q: Do you intend to go on to your section 3 or?
• A: Yes.
• Q: Maybe just before you do that let’s go back to an example – one of the examples you used about impairment – the Board policy currently is to deny coverage where the injury arises out of – where it is caused by impairment by alcohol unless there is some feature at work that has causative significance to the injury. In other words something that says well maybe the accident would have occurred even if the person hadn’t been drunk. Right? So that policy is there to address those situations, now isn’t that – I’m not sure whether we are going to get back to conduct disentitling an individual – a worker to coverage or not so I’m going to ask this question – isn’t that a classic example of a policy choice where you say if a person is impaired at work and is injured, not because of the impairment on the one hand it seems unjust to deny coverage but on the other hand isn’t that policy in itself making a statement about – it’s okay to be impaired at work as long as you are careful?
• A: Well, ah….
• Q: So I guess my question is – should there be an exception to conditions that are identified as being dangerous work conditions – impairment by alcohol or drugs – to then say well, but, if you can show that it’s not – if you can handle your liquor – in other words – it’s okay?
• A: Well, we don’t support that.
• Q: But doesn’t the exception lead to that as a statement, generally – I guess that’s my question?
• A: Well, your first example I think was the easiest one – if the accident would have happened regardless of the impairment then that’s relatively easy. But then we get into the more difficult examples. The – I don’t – I don’t know why you’d have an exception to – as I understand what you are saying that if the work is more dangerous there’d be a higher standard on the worker either through the policy or through the Act.
• Q: No, I’m saying this – that is there some justification in a policy that says this – if you come to work while impaired whether or not that impairment contributed to your injury or not – you are going to be denied coverage in order to make the statement that impairment by alcohol at work is not acceptable under any circumstances. And perhaps in making that statement for the broader public good of ensuring that workers protect themselves and their coworkers by not being impaired that you are simply going to make a blanket statement to deny anyone who is injured while impaired? Is that a justifiable policy in your view?
• A: No, and if that was the policy then the easy example that you and I both used could result in no compensation.
• Q: Yes.
• A: But if a worker showed up at work impaired and was injured – even if they weren’t impaired they would have been injured there would be no compensation – that seems – that seems….
• Q: It is clearly unfair – but what I’m asking you is to weigh that against the risk imposed by that person to other workers in the workplace.
• A: Well, that’s just not – that’s just not a question of compensation – that’s a question of Board – of employer management of the workplace – that’s a question of prevention – it’s not solely the worker’s responsibility – if for example the work site is notorious for drinking – well why should the worker be not get compensation for that? And I guess as a policy matter why should the Board go in and have to investigate that in every case?
• Q: Isn’t it something similar to the tort concept of contributory negligence – a person could be grossly impaired but if that impairment didn’t contribute in any way to the injuries sustained then there would be no deduction in his damages? In other words there has to be a causal relationship between the impairment and the injuries sustained and it seems that this policy follows the common law in that regard?
• A: I think that’s right – I’m reluctant to turn to contributory negligence issues – because you start with the damage and its cause….
• Q: I had a case – anecdotally many years ago – where a longshoreman had a .39 blood alcohol level – which most people would be unconscious or dead - but he was at work and a rope broke and a bale of pulp fell on him – nothing to do with his impairment whatsoever – and he would have been denied or his family would have been denied coverage.
• A: Yes.
• Q: in those circumstances because he was grossly impaired but it had nothing to do with the breaking of the rope that killed him.
• A: Yes, yes, yes. I think that’s the test. I think in the policy and I think it makes sense as I say I am reluctant to tie it to contributory negligence but – I think that’s right – it arises from that. And – and I don’t mean to underestimate some of the – some of the difficulties and decisions being made and in fact longshoremen have been working on his own and it would be a question of just exactly how do you get in that position and was that impairment responsible for him getting in that position so on those are hard cases and that is why we say each case should be dealt with on its own, individual merits.
• Q: I think another example might be is what happens if there is a fire in the factory and a number of people are seriously injured?
• A: Yes.
• Q: The ….
• A: The fire was caused by? We don’t know?
• Q: Whatever. They are at work though; they are all at work.
• A: Yes.
• Q: Would you expect that those who that were – they had all been tested and those who were found to be under the influence would be denied?
• A: Right. No. We wouldn’t suggest that. And as I say that – I guess that’s where it gets into the balance between making the fairest decision you can based on the policy and the Act and for the most people and then set that against a very detailed analysis and decision on a specific work site. At some point you’ve got to draw a line as a - the Board has to draw a line as a public policy institution that you know there is some arbitrariness in what they do. They say that expressly in some of the policies and some people are going to benefit – you know frankly unfairly and some people aren’t. The public policy objective is to cover the most people as best as possible.
• Q: Thanks, before you go on to section 3 are there any other questions on Section 2? Okay, why don’t you go on then?
• OTHER ISSUES
• We will be addressing the issues of psychological injury, and the need for a non-rebuttable presumption in the section on occupational diseases. We will be dealing with the issues of pain in the section on pensions and protective re-assignment in the section on rehabilitation.
• So this is the other aspect of coverage which is:
• SECTION 3: WHO IS COVERED BY WORKERS’ COMPENSATION?
• And we spent a bit more time on this.
• BACKGROUND
• The importance of who is covered by compensation is similar to that for what is covered by compensation. To arbitrarily exclude coverage under workers' compensation for a group of people, through legislation or policy, when the factual and medical evidence supports an association between their disabilities and their work, means that this group has to rely on their own resources to obtain any remedy. It also means that the costs of such disabilities are externalized so that the deterrent affect of the compensation system cannot come into play.
• Some of our recommendations in this section would result in matters that are currently part of Board policy becoming part of the Act. We believe this is consistent with the commission’s analysis of the difference between legislation and policy as contained in the Phase I report (pages 5-8). That is that McClure piece that you used.
• DEFINITION OF WORKER
• Who is and who is not a worker under the Act is a fundamental issue in our system of compensation. If a person is not a worker then he or she cannot obtain the benefits of coverage under the Act such as wage loss, rehabilitation assistance and a pension. This is true even when the injury or disease is clearly related to the work so one effect of applying the definition of worker can be to override medical causation. Another effect is to legally prevent the usual deterrent effect that we could expect if the situation came under the Act.
• In our submission, the term "worker" should be defined to enable the largest possible numbers of working persons to obtain workers' compensation benefits.
• As a starting point for that we note what we heard from Mr. Du Gas that the definition of "outworker" was left in the Act and it shouldn’t be there and it should be taken out – it just seems to be a housekeeping matter - as an oversight when Bill 63 was passed by the legislature. It should be removed.
• RECOMMENDATION: We recommend that the definition of "outworker" in section 1 of the Act be repealed.
• A more substantive issue is that around the concept of:
• INDEPENDENT CONTRACTORS
• As it stand now the largest group of people who cannot benefit from the Act are independent contractors (unless they purchase Personal Optional Coverage).
• For some of these people this is probably appropriate. We have in mind contractors who genuinely are independent when applying the traditional master-servant test (including the issue of control and economic dependence) as well as the Board’s broader definition. And you’ll recall Mr. Massing talked about in general the Board apprises a broader definition than the traditional common law test. As Decision 255 makes clear the major test for workers' compensation purposes is "whether the supplier of the labour has any existence as a business enterprise independently of the person for whom he works" (3 WCR 155 at 156). In applying this test the wishes of the people who are doing the work – whether they wish to be workers or independent contractors – are not legally relevant (Decision 32, 1 WCR 127 at 130).
• The purest form of independent contractor is the independent businessperson who opens a small enterprise. This person sets their own hours, owns all of the equipment and assets of the business and takes the risk of profits being more than the losses. In this situation the distinction between owner and worker is very difficult to make out (except where there is an incorporated company involved). We do not say that these people should be mandatorily covered by the Act.
• Our concern is with situations where the distinction between independent contractors and workers are artificial and really do not stand up to any practical analysis, whatever the legal principles involved. There are many circumstances, especially now with the increased growth of services industries and home work, where the relationship between a person supplying a service and the person supplying the work is one where there is increased control but no economic independence. Bearing in mind that that’s one of the critical tests in the common law is the economic dependence. This creates an artificial situation where people are treated as contractors but they do not have the independence contemplated by the legal tests for master/servant relationships or the Board test. There is no economic independence, only dependence.
• An example might be a consultant who is retained by a business. The work is done at the office of the consultant but it is defined in terms of specific tasks and even number of hours or amount of money by the person for whom the work is done. The agreement between the parties says the consultant is an independent contractor but there is really no serious bargaining because the consultant has no economic power to effect any real changes in the relationship. It is not particularly significant how the contract defines the relationship (Decisions 32, 138, 255) that is in common law and it is these decisions, but we understand the general thrust of Decision 255 to be that the consultant would be an independent contractor for workers' compensation purposes. Certainly Decision 255 makes it virtually certain that labour contractors will be considered employers simply by the fact of application for registration.
• The issue of genuine versus artificial independent contractors has been considered for a number of years in the context of labour law. Historically, there has been recognition of a middle definition of what are called "dependent contractors". In the past a bargaining unit could not be comprised of an independent contractor and it could not be comprised of dependent contractors unless there were legally defined workers in the same bargaining unit. And I’ve given you a cite there from George Adams – The Canadian Law and an excerpt of that is attached to this submission. The concern in labour law has been that dependent contractors have not had access to collective bargaining because of they are not genuine independent contractors. This has now changed and dependent contractors can now form their own bargaining units and be represented by a union.
• Section 1 of the BC Labour Relations code defines "dependent contractor" as follows:
• "‘Dependent contractor’ means a person, whether or not employed by a contract of employment or furnishing his or her own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another person for compensation or reward – and this is they key part I think - on such terms and conditions that he or she is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor."
• Section 1 of the Labour Relations Code includes dependent contractor as part of the definition of "employee" and by that sort of mechanism they are covered by the Act.
• Applying this to workers' compensation we currently have people who work as dependent contractors who do not have the benefit of mandatory coverage when they become disabled because of work related injuries and diseases. Whether or not these people furnish their own tools, equipment, etc. they perform work ore services for another person for compensation on such terms that they are in a position of economic dependence on, and under an obligation to perform duties for, that person. The relationship more closely resembles a relationship of employee than independent contractor and yet they cannot obtain the benefits of the Act unless they pay for optional coverage themselves.
• A specific occupational health and safety concern in these circumstances is that the person who has the most responsibility for the performance of the work does not have any responsibility for the costs of injuries and diseases that arise from that work. This is contrary to one of the fundamental principles underlying our legislation: the cost of compensation should, as best it can, act as a deterrent to prevent future injuries or diseases. Employers should not be permitted to contract out from this cost.
• RECOMMENDATION: We recommend that section 1 of the Act be amended to include the definition of "dependent contractor" from the Labour Relations Code and that the definition of "worker" in section 1 of the Act be amended to include dependent contractor in the definition of worker.
• We then go on to talk about DECISION 255 itself.
• Decision 255 is concerned with the registration of labour contractors especially where person contracts with another to provide the labour of himself or himself and others in an industry covered by the then Schedule A of the Act. And you may recall historically before Bill 63 – Schedule A was attached to the Act which listed all the employers who were deemed to be covered. And – the – so – Bill 63 abolished that and this is under section two of that.
• The decision noted that the Board, since Decision 138, had denied applications for registration as employers unless the application demonstrated clear evidence that the contractor has engaged in an independent business. The emphasis after Decision 138 had been on the labour component of the services provided by the contractor, equating it with the services provided by an employee and stressing the dependence of the contractor on the organization for which it worked.
• Decision 255 decided – I summarized the reasonings and conclusions here:

1. That Board "practice had laid – this is under Decision 138 - too much emphasis on those aspects of the labour contractor’s relationship which slow dependence on the organization for which he is working" (page 156). Bear in mind that that’s the thrust of the common law definition of employment relationship dependents and so it’s not surprising. Indeed, it’s required under common law for dependents to be paramount.
2. "Greater weight than has been the practice" should be put on contractors seeking out and bidding for contracts, keeping their own books and records, income tax/Unemployment Insurance Commission /Canada Pension Plan deductions, making hiring/firing decisions and exercising control over the contractors’ employees (page 156).
3. Some regard must be had to the particular structure and customs of the particular industry (page 156).
4. A full investigation of an application for registration as an employer is no longer appropriate. "After all, the fact that a contractor applies for registration as an employer is in itself some indication of his status as such"" Applications for registration as an employer should be accepted without further investigation if they are "proper on their face". (Page 157).
5. It is reasonable for the Board to accept applications for registration as employers by corporations at face value unless there are circumstances which indicate a full investigation should be made (page 158).

• We ask the Royal Commission to consider the significance of the change made by Decision 255. In practical terms it meant that an application for registration as employers must generally be granted as long as the applicant keeps their own books. A full investigation is not required in those circumstances. In general, if a person makes an application for registration as an employer it is accepted on its face especially if the applicant is incorporated. This is because the Board had, pursuant to Decision 138, paid too much attention to the issue of dependence on the organization that is supplying the work.
• In legal terms the test of dependence has always been critically important in defining whether a person is a servant/employee/worker or not. This is true in the common law tests as well as the Board’s policy. What Decision 255 does is to downgrade this issue to, at best, worthy of minor consideration and thereby abolish a major feature of common law definition of master/servant law. It facilitates the actions of organizations who prefer having independent contractors rather than workers. These organizations insist that persons make themselves independent contractors in order to obtain work, these persons do that and then the Board accepts the applications their face. This provides the opportunity for applicants for employer status and the people they work for to create the fiction of an independent contractor. This is the kind of abuse that occurs when statements such as the application "itself has some indication of the status" of the employer are made.
• RECOMMENDATION: We recommend that Decision 255 be accepted as wrongly decided on the basis that it is contrary to at least one major common law principle of master/servant law – that is the economic dependence test and that it facilitates situations where employment relationships are treated as relationships involving independent contractors. Further, we recommend that Decision 138 be re-confirmed as being consistent with the common law and that the definition of "worker" in section 1 of the Act be amended to include this definition. (See also next recommendation).
• We are next going into a discussion of the APPLICATION OF DECISION 255
• The commission may recall the Board’s presentation and the answers provided to questions about Decision 255 from 1977. In our submission the Board has adopted a "practice", based on an interpretation of Decision 255 that the decision cannot sustain and this has become part of the unwritten and unauthorized "policy" of the Board. In fact, it was presented to you as official policy when clearly it is not. And I don’t think I’m giving anything away Mr. Chairman this is going to be a theme throughout the entire two weeks and we have the governance section at the very end and that’s where we are going to deal with it in a head on kind of way but this is – this comes up in a number of different areas.
• The example, that was discussed with the Board was that of courier drivers. If a courier uses his/her own bicycle for the work then that person is a worker and is mandatorily covered by the Act. However, if the courier buys a van for use at work then he is an independent contractor and he is not mandatorily covered under the Act. And I should say to be complete there if he buys a van and applies for employer registration the Board would say that he is an employer – an independent contractor rather than a worker. The difference is that the Board considers a van a significant investment in the business and the bicycle is not so considered. There have been situations where one company has bicycle couriers as workers and courier drivers who own their own vehicles who are independent contractors.
• Decision 255 was held out as the authority for this situation. At page 4 of the Board’s presentation the following was stated, "In the past we would have held these people (couriers owning their own vans) to be workers, but Reporter Decision 255 gives them the option of registering like other employers or independent contractors".
• No where in Decision 255 does it say that a person who has made a significant investment in an asset should automatically be considered an independent contractor."
• When pressed it was admitted by the Board that Decision 255 does not say this specifically but rather it is the Board’s interpretation of Decision 255 that has created this situation even though it was also admitted that there is nothing in Decision 255 about the value of the equipment that the worker owns.
• So we have a situation where courier drivers who own their own vehicles have been disenfranchised from coverage of the Act not because of Board policy but because of an interpretation of a decision that cannot reasonably be sustained by that decision. Put another way, an unreasonable interpretation of a decision has been given the force of policy without any approval of the governance of the Board. More disturbing is that, prior to Decision 255, the "policy" was the reverse (see Decision 138, 2 WCR 143) so we have an unfounded interpretation of a decision by the Board’s management changing previous policy. This is also a matter of definition and control of Board policy and we will be addressing it in that section of the argument that relates to governance.
• Finally, there is the BC Court of Appeal decision in IPX International Limited versus Workers' Compensation Board (1988) 25 BCLR (2^nd) 273. And that is attached to the submission Mr. Chairman. In that case, a challenge was made to a Board decision that IPX International’s courier drivers were workers and not independent contractors. The challenge was not successful at the BC Supreme Court or the Court of Appeal.
• The significance of the case for the purposes of these proceedings is that the Board’s position in that case was the opposite of what was said before this commission. The original decision of the Board is quoted in the judgement and an excerpt at page 278 is as follows,
• "(The Commissioners speaking in 1988) consider it significant that the messengers operate under your motor carrier license and, not withstanding your argument that they are free to work for other companies, find that, in reality, they have no independent existence as a business without your company. Again the common law test of economic dependence - There is little chance of the messengers making a loss. And then this statement. Though their vehicles are provided by themselves, your logo is on the vehicle and all billing for the services they perform is through your company. [Emphasis added].
• The decision in this case is the opposite of the position taken by the Board before this Royal Commission. And as I understand it what would happen in the situation is that if a driver from IPX who owned his or her own vehicle came to the Board and asked for employer registration the Board would decide that they would be an independent contractor. So it is the act of the application for employer registration that will trigger the finding of independent contractor. To put it another way – until that application is made they could well be workers. So you – I talked to Mr. Dugas about this morning and he explained that and I offer that as I hope for clarification for the situation. The point though and this comes to our recommendation.
• RECOMMENDATOIN: We recommend that it be confirmed in the definition of "worker" in section 1 of the Act that economic dependence is the primary consideration when deciding worker/employer status and, further, that investment in assets is not a determining factor for determination of an employment relationship. Also, it should be specifically confirmed in Board policy that courier drivers who own their vehicles are workers under the Act unless their situation is such as to comply with the common law and Board test of employment relationships.
• Those are the presentations on who and what are covered on behalf of the BC Federation of Labour.
• Q: There is the measure of economic dependence it would seem in virtually any relationship – business relationship?
• A: Yes, it’s not a – it’s not a black and white – I think there’s a – there’s a in the purest – well, I guess the example I used – the person opening their own shop – we don’t get into economic dep – that’s – there is no distinction between the worker and the owner so we don’t get into the economic dependency issue there – well in the purest form – there is ultimate – there is no distinction – there is pure economic dependence in a notional sense between the notional worker and the notional employer. On the other extreme is the accepted and undisputed worker who works in a production line, paid on an hourly basis and so on. There’s economic dependence there but and I guess the question is whether there is economic independence. And the common law test there is no economic independence. Now somewhere in the middle is everybody else and we don’t say that the courier drivers are the worker – the pure worker but we say that they are closer to that than the independent – we say that courier drivers are not independent contractors; they are workers – the fact that they own their vehicle is not – does not determine the question of independence. And we rely on the IPX decision for that.
• Q: I’m just trying to think of some examples where – that might assist us here.
• A: I just might add that if we are to get our way on dependent contractors we wouldn’t – we wouldn’t be getting into the problem with courier drivers.
• Q: Let’s say you have – in a familiar area – an associate lawyer or a lawyer who is not employed with any particular firm but is engaged by a firm on a project basis – the lawyer has his or her computer at home and so they are engaged to do a particular project – are they then workers? Because of the economic dependency; they have all sorts of controls I suppose in terms of how and when they want to do the work – they are doing it at home on their own – so I suppose they are workers in that sense -
• A: Yes.
• Q: How does that work?
• A: Well, I guess…
• Q: to be a worker?
• A: Yes, if there was a – they are paid by – to refine it a bit – two refinements on that – if they were as you say – had their own computer – they worked at home – they set their own hours and they were working on a particular case – doing specific research on a specific case – the damages portion on some litigation – and the – that could well be an independent contractor. On the other hand if they are working at home – paid on an hourly basis and they get work on a regular basis from the law firm and I mean just to make it really easy – they may even get some kind of benefits. That would be a worker so I – I think we need to take it to different levels of facts to understand the situation – it could be either one – the fact that they are at home is not determinate – this is the independence issue we got into yesterday with the Review Board – whether they are internal or external I don’t think is determinate of.
• Q: But if that is the only firm they are working for at that time – notwithstanding that they – that that fact I gather you are saying would be very important in determining and characterizing that associate as a worker – or that lawyer is a worker. Because of the economic dependence of that particular firm – that is the only project they are working on –
• A: Yes; I think it is important; whether it is conclusive on its own I’m not so sure – you recall that in IPX the Board said that the mere fact that they courier drivers could work for other people – didn’t mean that they were independent contractors.
• Q: So in this case if the lawyer had a number of projects on the go with different firms they’d be workers at each of those firms?
• A: I – again I don’t think it is black and white; at some point they become an independent contractor – if they are working for a number of firms doing specific projects – say they are – say the thing is damages and that’s what they do – so they work for a number of different firms doing research on damages and so they have in a sense a reputation and economic independence as an expert in damages – and then maybe would be an independent contractor. And I guess another point there – the person giving out the work would act at their peril would make that lawyer exclusively theirs. By at their peril I mean they run the risk of that person becoming a worker.
• Q: Does the home then become a workplace? Who is responsible for it?
• A: Well, that – that’s – that’s the problem of home work; we think that if the worker – if the person at home is a worker under the common law test and the Board test that is a workplace and that means that the employer is responsible for the – for some of the prevention matters at the worksite. Now, it becomes complicated because the employer – because the employer doesn’t own – assuming that the –
• Q: To use the law firm for example – they have nothing to do with the residence. So …
• A: It seems to me that in those situations that that – the employer – assuming it is an employer/worker situation – the employer as a contractual matter needs to set out things that are necessary at the home of the lawyer – using that example. And they might even require the ability to have a look every once in a while.
• Q: So if there is more than one employer – there are a number of law firms that this person is working for – let’s say two or three – which of them becomes – or is there a collective responsibility they have to make sure that the home is an adequately safe worksite?
• A: There may be.
• Q: It get’s difficult, doesn’t it?
• A: I’m not disputing that for a second; I – that’s the nature of home work and Mr. Winter in his questions posed the compensation side – if someone is working at home and they bend down to pick up their kid and also a pen for their work – and – how do you sort that out? And if – the easy answer is to abolish homework – but that’s not going to go very far so I don’t mean to underestimate the problem – I just think that to – there’s no simple answers either way. You can’t say that everyone who works at home is an independent contractor – that doesn’t sell – that doesn’t solve too many problems and it may create more problems. And nor can you say that the fact that the – it’s not an easy or complete answer to say they’re all workers either.
• Q: I can see where they may be a problem – I’m not sure whether we are starting to create a problem where they may not be one. In fact you did mention that dependent contractors have the ability to organize in a bargaining unit and thereby can perhaps negotiate something with their employer in the form of a contract to take care of the situation – purchase of insurance to cover those situations that might arise from employment. Similarly if you are dependent contractor – independent contractor you do you have the option to purchase insurance so I’m not sure what we are trying to get at here – what’s the issue – I mean there are options out there – there are choices for individuals to make – whether they are dependent or independent contractors – it’s not as if there are no options available to someone who gets injured at work.
• A: Someone who gets injured at work at home?
• Q: At home; the workers working on behalf of IPX. There are ways of….
• A: I think what we are getting at is maybe certainly close to the rule of law that – that if someone is working at home and they are a genuine worker for the purposes of this legislation then some things follow from that. And it may be that they don’t even know that they are workers and it may be that the person who is sending them work don’t know they are workers and you know that – that – I’m sure that happens. But one of the things that has to happen I think as we get into these new ways of working is that people have to understand what they are getting into. And it is not just a question of farming some work off to someone and getting the work back – which has some legal implications to what they do.
• Q: I think I might agree with you there. There is a need to make people understand about what they are getting into – but following that there is also a need to give them the options and choices of which route they would like to follow. And I think that there are options out there without us having to work hard at it.
• A: Well, I’m not sure what the options are that you are referring to.
• Q: If you are a dependent contractor you can as I say – there are options out there to – that others in a similar situation with that particular employer – that that may be the case to purchase some kind of insurance coverage.
• A: Yes, and if they were dependent contractors they could do that – I mean if we got our way with dependent contractor definition being added to the Act they could – they could that and form a union too you know if assuming that the Labour Board would agree that they were dependent contractors.
• Q: But you are saying that as it is now the labour law there is an ability to form a bargaining unit if you are a dependent contractor?
• A: Yes. Yes, the change was – it came in with the 1991/92 – the change was before a dependent contractor – you couldn’t have a bargaining unit of dependent contractors on its own. You could only have a bargaining unit of dependent contractors if it included workers also. And the change was you could have a bargaining unit of only dependent contractors.
• Q: I think the question that the Commissioner is raising is it appears as though nobody falls between the cracks – if you are an independent contractor you are entitled to the personal optional protection and you have coverage. If you are dependent contractor and then you’re a worker so there’s no – you don’t have any situation where someone doesn’t get coverage? If the Board refuses you personal optional protection then you are clearly a worker. So you can’t fall between the stools.
• A: No but if you use Decision 2, part 5 – then – then you would be treated as an independent contractor and the question is who pays for that?
• Q: Yes, but from a public policy standpoint we are not talking about people not being able to get coverage you are talking about employers contriving a way to avoid the expense of the premium.
• A: Yes.
• Q: Is really what’s at the heart of it, isn’t it?
• A: Yes. And that’s not a – that’s not a shell game – in the sense that it doesn’t matter what shell it’s under – the question is legally – and this comes back to your question Ms Exell – legally who has the responsibility for health and safety and claims at that work site – whether it’s at home or whether it’s a factory. And what we are trying to get here, as best we can is the complicated situation of homework – is to have that situation in place. I’m just reminded that the coverage as a worker is mandatory coverage – so a worker doesn’t have a choice – an independent contractor does have a choice and may not apply at all. Mandatory coverage is particularly an issue for young people. Young people tend not – they would rather have the money in their pocket than pay for the coverage. Another issue on optional coverage is when we have claims from people who are independent contractors they typically will under-insure themselves so they might have a serious injury they come in and say how come my compensation is so limited? And the reason is because they have under-insured themselves. If they were mandatorily covered that wouldn’t have happened.

• Unless the Commission has any objection I am going to start with the who question – the documents are placed that way in front of you. And the topics I’m going to address under who – I’m going to start with the fishing industry, then I’m going to talk a little bit about labour contractors that has been referred to by Mr. Steeves as dependent contractors – I think we are talking about the same concept – and then I have a couple of small points just to raise for the panel’s deliberations at a later date – dealing with the Aboriginal worker issue and the self-proprietor/partner who incorporates and then I’m going to finish these section of who with Section 51 – a couple of points on that section – then I will reply to Mr. Steeves comments on who – that will incorporate some of the questions that the panel has already asked if I don’t get asked them again.
• The fishing industry – as you will recall the discussion with Mr. Dugas – and his presentation – the current practice is that the first commercial buyer of fish is designated as the employer for the purposes of Workers' Compensation Board assessments and that first commercial buyer does not include foreign commercial buyers. On the other hand – for prevention and safety purposes – the Workers' Compensation Board recognizes the responsible parties being the vessel owner – not the first commercial buyer.
• Now Mr. Dugas agreed with me and it is recorded in the transcript that there are a lot of anomalies in the situation compared with how the rest of the system works. And I just wanted to highlight the anomalies. And then propose a solution which I believe addresses each anomaly for the consideration of the Commission.
• First off, Mr. Dugas agreed with me that the overall anomaly is everything the Board does is predicated on an employer/worker relationship. That is not always the case in the fishing industry.
• The reason that he provided to me for the first commercial buyer being put in the position of employer for assessments only is it’s the best position to pay the assessments. I’m not sure that’s accurate; in any event I don’t think it is the proper focus for Workers' Compensation Board purposes to split the employer. It may be a focus on the overall consideration of who is the actual employer at the end of the day when there’s multiple choices but I do not think it is appropriate to split the function by saying who is the most appropriate for A, B, and C. I’ll come back to that a little bit when I talk about dependent contractors.
• So here are some of the anomalies and concerns that were raised and Mr. Dugas agreed with each and every one of them. First off, I indicated that it was the only situation that I was aware of that the primary employer responsibilities under the Act were split between two different entities and he agreed– the first commercial buyer for assessments – the vessel owner for safety.
• Second there is no experience rating for employers for assessment purposes in subclass 0911 – which is where the first commercial buyers are – for that purpose. Most other employers as the panel is well aware have experience rating assessment with certain exceptions like deposit accounts and the federal government employers.
• Third anomaly – the firm that is saddled with the cost of the system i.e. the one that pays the assessments – has no authority or control over the safety or accident prevention. In other words the first commercial buyer has no ability to discipline or require compliance with the people who the fishers are – who are actually on the boat. Of course unless the first commercial buyer also owns the boat which wouldn’t be a problem because then you would have same entity covering both those roles.
• Fourth, the firm with the authority and control over safety and accident prevention i.e. the owner, has no general financial incentive to ensure a good safety record. I.e. the more accidents the vessel owner has the more it affects the assessment rate – but why does the owner care? Because he or she is not paying that assessment rate.
• Five – the situation you have with first commercial buyers – assessments are not paid on the full value of the catch. And that’s because there is no assessment on the value of the catch that’s sold to foreign processors – foreign fish buyers. Now what that does is it has the anomaly of inflating the assessment rate paid by the first commercial buyers that are covered under the Act? The reason for that is that the assessment rate is still dependent on the claims cost paid out to all of the workers in that subclass. So the value that is being paid out is constant. The value that is coming in – there is less fish. So there has to be a higher assessment rate based on a lower overall principle value. If the whole value of the fish was calculated there would be a smaller assessment rate.
• And we also have a situation where you have a potential subsidy by the employers – and I gave the issue to Mr. Dugas – is you have a fisher who is delivering fish to a foreign fish buyer – that value of that fish isn’t being assessed – the fisher suffers an injury while doing that – that is compensable – as long as the ten percent rule is met – as long as they are selling ten percent or more of their fish to commercial buyers in BC – they are 100% covered. And so the example I used was 50% to foreign fish buyers and 50% to BC – covered – injury occurs while they were foreign fish buyer – covered. But the value of the fish being sold when the injury occurred isn’t assessable.
• And the final anomaly that I raise that was agreed to is that there is a potential for overpayments in this industry. An overpayment is when the earnings of a particular fisher is above the maximum earnings for a normal employer/employee relationship – the employer would not pay above the maximum – which is $56,000 – thereabouts – but in this situation each commercial buyer pays on the full value of what he’s purchasing and so if you have one fisher selling to three different buyers each one being $50,000 the total catch would be a $150,000 but they pay assessments on all. Whereas if it was in the hands of the owner themselves the – when you hit the maximum you stop paying assessments.
• So there are quite a few anomalies in this situation – in my view there is an obvious solution. Make the same employer for assessment purposes as you do for safety and prevention – and the person who has control in that situation is the vessel owner. That would appear to address all of the anomalies that I’ve raised.
• And for the sake of time I won’t go through the solution on how it appears but I would be prepared to answer questions. But that seems to cover them all off.
• Now Mr. Dugas appeared to agree and then said – you’ll find it on page 16 of the transcript – "when the legislation was brought in and principles and Board regulations which implemented came about – the situation was different than today. There is a lot more offshore selling. Industry has changed quite a bit. Funding the system and how it works need to be reviewed." Now talking about common themes is as Mr. Steeves said this is one that you’ll hear from me quite a bit over the next days. Here is the first of what is going to be many examples of an issue that has been identified within the Board a long time ago – and we are still waiting and watching. The March 27, 1997 Briefing Paper called The Workers' Compensation Board – Dealing with the Fishing Industry – on pages 4 and 5 says this – " On August 30, 1994 the Board Senior Executive Committee set up a Working Group of Board staff from Prevention, Assessments, and Compensation to examine the general issue of responsibility to pay assessments. The group was scheduled to finish its work by November 15^th 1994 but no final report was ever issued." So here we are again 3 ½ years later and we are still waiting for some sort of resolution to a situation that has been identified as a problem.
• In my submission there is no reason for the Commission not to get involved with a recommendation with respect to the fishing industry. In fact, the reasons are all there for the Royal Commission to make a recommendation. The main one being that it is covered in the legislation under Section 4 of the regulations. So this is not just a matter of policy. Even if it came out of the Board it would be a matter of legislative change.
• And again it seems to be a simple solution – the full value of the fish would be caught if you assess the owner. We haven’t heard any reasons from the administrative viewpoint that this isn’t workable. I think we heard and it is in the paper that there are approximately 4500 fishing vessels. Within that number there is multiple ownership. And there are also some owned by commercial fish buyers who are already registered so it wouldn’t be 4500 being registered all at once. But in any event compare I think Mr. Dugas’ evidence was that on an annual basis there are possibly 25000 new employees that are registered anyways. This would be less than a fifth of that. And Bill 63 when it came in in a one shot deal in January 1994 had approximately 13,500 employees so the Board has dealt with new numbers of employees needing to be registered and dealt with of all sizes. In the 1994 changes a lot of them were small business operators. And then we also heard the information that the vessel ownership and the cash records are readily available to the federal government – the Federal Department of Fisheries and Oceans.
• Q: Do you foresee a problem given that the master, crew and vessel owner are coventurers with respect to the fishing season and that they – the amount that the workers on board the vessel get are the net profit after all expenses which would include the assessments?
• A: No.
• Q: In other words the people who are covered are paying part of their own assessment in the sense that it reduces their profit. Is that a problem?
• A: To me it comes down to the same problem as identified earlier – what is a worker versus a dependent contractor versus an independent contractor – in this situation I remember reading the previous Royal Commission’s and they tended not to get involved in this debate and they found them and continued to find them being independent contractors. This came up after the Tysoe Commission. I think that is probably still the same way that this issue should be dealt with – as any other industry. And I will respond a little bit later under the dependent contractors but these are very much factual cases. The legal principles are not going to be all that difficult – I don’t think Decision 255 is the answer. There are a lot more cases that set out much more factors than one. It is a factual basis of making that decision. Then we are going to come down to that maybe there philosophical or public interest reason that they should be mandatorily covered. A mandatory personal optional protection kind of philosophy that we may discuss when we get to dependent contractors. If you find that this is a group that should have that kind of protection – it is a very paternalistic view – I think if you find that they are independent contractors – I think that should be their decision. But there may be some value when you are deliberating that you believe that these people do have to have coverage and it will be the owners’ responsibility to make sure that’s done. I think that’s the best that I can answer that one.
• I’m going to move off that topic and I’m going to move into labour contractor. This is a very difficult area; anybody who practices in this area on behalf of employers and probably shakes their head every day they get a contractor issue. And the sort of difficulties the Royal Commission was asking Mr. Steeves. It’s not a concept in the Act – labour contractors – so that’s the first thing. It is purely a creation of policy. And the intent is to help identify the hybrid between worker and dependent contractor. That is independent contractor. It’s not a clear-cut situation. I think you’ll find one of the best descriptions of the labour contractor issue is in the Briefing Paper by the Board entitled, "Who Is A Worker". And it is on pages 16 to 18. And it starts this way on page 16, "This may be labour contractors – this may be one of the most confusing controversial aspects of this issue. Assessment policy 20.30.20 provides guidelines for distinguishing between worker and independent firms. But to assist in making that distinction the policy creates a category called labour contractors. [And here we go], labour contractors are people who employ others and supply essentially labour only in a contract or who may or may not employ others but supply labour in one piece of major revenue producing equipment on a contract. And that flows from the policy. This policy is based on the view that people who supply essentially labour only on a contract should be covered under the Act that is a person who supplies labour only is not prima facie an independent operator who can elect whether or not to be covered by the Act." I think you are going to find that’s where the problems start coming. Because it is an artificial one factor again to determine whether or not you are going to be treated as a worker, or an independent contractor. Just to supply labour to use the example of – we’ve used on contract basis – lawyers for research projects that we don’t have the expertise or capability of doing at that time. We know they have other contracts; they are only supplying labour. Under this kind of definition we get into this fuzzy – so what are they? Whereas I think when you step back – and I use the example of stepping back – in the real world a lot of times people are going to look at this and say – clearly that person doesn’t work for us while they do on a contractual basis and they’ve agreed to provide a services to us for now but when you look at all the other factors – control, timing, probably some negotiated rate, equipment, other clients, can they get someone else to do the work – when you throw in all those other factors that is when you start leading to the conclusion that every case is going to be different. Some are going to err on the side of the factors and circumstances on the side of the worker – others are going to be no way.
• So I think that is where the main problem comes in and then we get to the Board’s concept of – okay I’m a labour contractor – I’ve identified what it is for policy purposes – it supplies essentially labour – but we get this dual status. A labour contractor has a right – they have a right to register. If they register they are then treated as an independent and are covered. If I understand it if they have no workers they have to cover themselves by personal optional protection. If they do have workers they are treated as an independent and they don’t have to cover themselves. They have the option – to get personal optional protection but they have to cover their employees. But if they don’t register now they are a worker. And that I think is the real problem with the system and what – what I will be asking the Royal Commission to have to deal with is – if you agree it is a problem – we have to come up with a solution. And again I’m going to use construction because I have a lot of experience in this problem. A lot of people who supply services for renovations for example in construction provide labour only, usually by themselves and usually others – one labour and one piece of revenue – major revenue producing equipment. So they found the definition of labour contractor. When you look at the two parties – the principle and the labour contractor – I don’t think either one of them will obviously be able to put their minds to – hey we’ve got an employment relationship here. And that causes problems within the system. Starting with the homeowner. A home owner who retains the services of a construction group that’s going to work for more than 24 hours is going to face the potential that they are a labour contractor if you are not register and they become the employer. I know nothing about construction; I don’t know how to get my light bulb switched when the bulb goes out. I rely on someone else’s expertise and experience to come in and do that work and how they do it is their business pretty well. We tell them what we want; we work out how much it is going to cost and we know it is probably going to cost a lot more anyways. And they do it. It’s their job and it never crosses my mind that gee I am really an employer; I have some responsibilities and obligations here. And I’ve talked to a lot of people who do know that – dealing with Workers' Compensation Board. And I’ll bet that there are people in this room who have had renovations for more than 24 hours and the bill was more than $5000 who didn’t give a thought as to whether they should be covered under Workers' Compensation Board. That is a problem because of the consequences. If that person falls off your roof or otherwise gets a serious injury and they are a labour contractor and you weren’t registered you get the Section 47.2 – you have to – you have a mandatory penalty put on you of the capitalized value. Now we heard from Mr. Dugas that they excuse that for small business to an extent that it is a more reasonable penalty – A. that is not my experience but I’ll accept the evidence; B. it is still a penalty to something you would never have put your mind to.
• Take it out of the homework; put it in the businessperson. The example I used is – you have a pair - you have two partners – you have two partners on Fourth Avenue to open bookstore. They have no employees; they do it all themselves. They decide they are going to renovate. They want new shelves in so that it looks smarter and looks roomier. Then they go out and get a construction firm. It is not part of their core business; it’s not like they hire someone to work on the weekends to work on the cash and sell books – which they should have put their minds to – this is an employment relationship. They brought someone in to do what they can’t do – they shut down for a week to get the work done. Same thing. If that contractor is not registered with the Board – they are a labour contractor – and the partners are going to be responsible as an employer if anything happens to them. That is a problem in the system that somebody has to deal with in my submission. I’ll come back with a potential solution at the end.
• So we get into the problem that it is too confusing. It is too technical for the average businessperson or homeowner or anybody else who gets themselves in the situation. As we move through the 1990’s into the new millenium we are getting into more and more situations where people are going out and starting their own business and acting as consultants. And the same issue is always going to come up – what is the nature of the relationship between us? And the real difficult thing is that every agency comes up with a different definition. And so it becomes even more confusing. Revenue Canada says that’s fine you are not an employee – you don’t have to pay tax for them. But then the Workers' Compensation Board steps in and says they are an employee for Workers' Compensation Board purposes. That is a very confusing scenario. It is also confusing because it changes. And I used the example when Mr. Dugas was here – which was a case that I was involved in that changed – and that was for a municipal company that hires on a regular basis a dredging company. A municipal city that hires a dredging company. And the dredging company was clearly registered – never a problem – then one year they change their own internal structure and then now a company for the equipment and an unincorporated business for labour and they hire another person – and we knew they were hiring – we had no influence in that. And then that person died. The equipment they were on rolled over and we – the city I acted for – became an employer. Because that change in the relationship that we weren’t quite clear on – that we were now dealing with two companies – or one company – we dealt with the same person – all of a sudden he changed his legal relationship from the Board’s viewpoint – he became a labour contractor. And he wasn’t registered. He became our employee and all of a sudden we got zapped with the fatality. There is something wrong with a system that can change so easily. And the employer doesn’t know. The potential employer isn’t advised of that. It’s a problem in the system.
• Same thing with the frachisor/franchisee – the ones that clean buildings. The decision was that if the franchisee has other employees or contracts and is incorporated then they are going to be independent. But if they only act on their own they are not going to be so if you take the case where they two employees and for some reason they get rid of them the relationship changes. And we may not know that as the employer.
• So the recommended solution. My solution is that the labour contractor should either be treated as an independent for the purposes of the Act and that is because when we get into labour contracts they don’t have all the markings of a worker. That should be simple they are workers. They can’t register on their own. When we are dealing with someone from the Board who already recognizes has certain qualities of both and in my submission they are entering into the world of business as a separate entity and part of that is the financial aspect and coverage – they have to be made aware of their rights – communication problem is always going to be a significant one – how are we going to get them to know that they have the personal optional protection coverage option so at least that they are aware of that.
• Q: That solution – with the concern that the employer is simply offloading their responsibility?
• A: I think what it is going to come down to Judge Gill is that of a factual issue. A lot of these labour contractors applications I don’t have a problem saying they look like workers. And they probably shouldn’t be labour contractors; they look like workers. On the other hand I know of a lot of cases where I can say there is no way that labour contractor should even look like a labour contractor. They look like an independent. And so when you say offshoot them I think what you are going to find is that again you have to examine the nature of the relationship. If it is one that we normally – take us again – we have associates that work at home as well as work at the office. If we ask them to go out and incorporate simply because we know that will cause them to become a separate employer and maybe we’ll have some way of getting around this – I think the Board has to have the ability to step in and investigate that situation. And say no this is not a bona fide relationship. I don’t know how else to deal with it – it’s always going to be there and the only way to find it is for the Board to be able to examine – now the Board can’t audit everybody. But that’s the way the problem is ever going to come up – the Board gets involved when somebody comes to register or the Board does an audit or they find out something or other and then again it comes back to do we have clear sets of guidelines and what do you apply to determine where these people fall. And when they fall on the side of labour contractors – the submission by the employer community would be either they register on their own or they are independent. And they don’t have to register.
• Q: Isn’t putting that option in that wide a perspective just going to encourage more and more people not to have coverage? Which if you are the homeowner bringing in people who are going to be doing work on your house that it is going to be good for you?
• A: But Mr. Stoney, let’s say that’s true – so the homeowner brings in a person who – and a lot of times I find with these things is it is a person who has a job with another company – and it is a slow season so they going out and doing renovations on their own – one person let’s say. That person comes in – if they are aware that they could get workers' compensation coverage – again it is a communication problem – and they decide that for whatever reason they have they don’t want that. Where is the public interest? Is it to say to the homeowner, I’m sorry you bring them to your house, even though you are not really their employer but we think for the public interest they should be covered in case they fall off the roof and you are going to cover it? Or is to make sure the person is doing their own business has a knowledge at least of what is out there for them and they make their own decision. We may not like it; they may end up getting injured and we may all feel sympathetic to that but as long as they had the information in advance and made that decision consciously is there anything wrong with that? And that is where I get to; there’s going to be a line that people look more like workers. And may be the answer is we shouldn’t have this artificial labour contractor; it’s a tool to help decide which side of the line they fall on.
• Q: How do we know they made that decision consciously and in fact they just don’t have the coverage and we end up as the homeowner being responsible for the injured worker?
• A: Well, again, what I’m trying to do is stop that connection that the homeowner ever becomes responsible for the injured worker because I don’t consider them to be a worker. Again, I don’t know how to answer other than to say that there’s going to be times where I agree with you – the situation is going to look like one that the person is a worker and one should be covered, mandatorily, by the employer. Homeowner and construction worker is an example I used in my mind and my submission it is a clear example of one that most people looking at that situation would not see an employment relationship. It’s not obvious.
• Mr. Steeves’ presentation he has on page two of his written argument set out under Decision 255 he says " the Decision 255 makes clear the major test for workers' compensation purposes is – whether the supplier of the labour has any existence as a business enterprise independently of the person for whom he works." Now again that test when you read the case is that there are a lot of factors that go into that. But just taking the overall viewpoint – again that’s a helpful test. "If the evidence shows an existence of the business is independent of the person for whom he works we should err on the side of my submission. That they are independent. Let them know their rights and let them register. If not they don’t meet that test and it seems that they are a part of that business enterprise that they are working for then it is a worker and employer relationship and the employer has the responsibility. When you take the examples I’m using my submission is that the homeowner and the construction worker are independent businesses. There’s no connection; there’s no core business that you can say that these two have some sort of business relation with. Equally with the bookstore. But there are a lot and the courier driver is one of them. In a lot of cases where it’s a core business for the courier company – the person has a van – yes I understand that but it’s the nature of their operation is core to the nature of the employer’s operation too. I think that’s the nature of the problem in that industry. And again, we can debate all we want today; it is so factual that each and every case is going to have its fingerprints but what we need are guidelines and tests on how to determine where we fall on that.
• Q: If you have a very large business, large employer – say an industrial plant that manufactures let’s say a certain product. So that’s their sort of core business but in the course of doing that makes use of any number of skills in the plant – maintenance, inspections, materials being supplied – all sorts – design work, if you adopt that test just about anything not to do exactly with producing that particular product could qualify for to use my earlier term – to offload of employers to create categories of independent contractors who really are workers who are collectively necessary for that place to run?
• A: And so this is not a novel issue. You face that all the time in labour. There’s lots of cases on it – Workers' Compensation Board may have to start looking at other areas. You get into contracting out issues and a lot of times language deals with work that our workforce can do or presently has done or there’s all sorts of different languages and a lot of elaborate, complex applications toward exactly the issue that you are raising. You have the ability to contract out but under these circumstances and you get into cases where you do renovations and you want to bring in painters and labourers who can do the paint job. And you go through the same sort of thing. And again I don’t disagree that it is a very complex, factual area. But it is there and I don’t think it is going to go away; I don’t think there’s an easy solution that we are ever going to come up with and say everybody should be independent or everybody should be an employee. If you read the definition that Mr. Steeves put in front of you from the Labour Code – you got the same problem – it doesn’t go away just because you have a different definition. What it says is that at the very end, "the person most closely resembles the relationship of an employee than that of an independent contractor – basically the exact same issue. Still have to weigh everything and decide so what do they look like? And that’s all I’m saying here – whatever you put into the Act you still have to deal with this. You are always going to have a grey area; you are always going to have people that you are not quite sure of what they look like and that becomes a decision I think the panel won’t be able to deal with forever. It is going to come down again I think to guidelines that seem reasonable and the Board will over time work with those guidelines and hopefully come up consistent answers. Which I think is one of the problems now; I don’t think we’re all that consistent.
• Q: Just so that I’m clear Mr. Steeves proposed a definition of dependent contractor I presume for insertion into the legislation and that would qualify under the definition of worker and some other factors that were discussed along those lines were. What do you say about those? Do you have – or what would be your definition then of the test and the factors to be applied in the test? Just so that I’m clear on that.
• A: I don’t think I have a problem with the Labour Code definition – I have a problem with Mr. Steeves’ suggestion that it goes under the definition of worker. Because when you read what the definition of dependent contractor is that I don’t think it infers that they are necessarily a worker but that is where you are putting the definition so to me it would a different definition – just called dependent contractor as is done in the Labour Code and then you are going to have some section of the Act that talks about dependent contractors and what happens with dependent contractors. If you look at the material I’ve provided to you – it’s the second document I think there – I’ve provided an excerpt that’s taken off of the Order but I’ve provided an excerpt from a CLE paper I did. And the reason for that as soon as I can find it – it’s November 1994 CLE paper for workers' compensation. And if you look at the section called "Independent Firm versus Labour Contractor" – and Labour Contractor starts on Page 31.11 but the – but I was really putting this in for was page 31.12 – and under section B, "Factors considered by the Board in determining a person’s status because" – what I was going to say is that Decision 255 is just one and there’s all sorts of other factors that the Board had. These factors used to be in the Claims Manual but they found it confusing to have factors in the Claim Manual and to have different factors in the Assessment Policy Manual so they removed them from the Claims Manual and only have the Assessment Policy Manual. These factors are still discussed and I’m going to give you cites in published Appeal Division cases. So it sets out a lot of the other factors that you look at when making a decision whether someone is a worker or independent contractor and then sets out if you look at 31.13 actually two tests that are more focused on Workers' Compensation Board. The first seven are the common ones that you find in most situations and then you get the Appeal Division identify two further factors – who is in the best position to pay assessments? Who is in the best position for prevention and safety? And again they don’t divide it as we have seen in the fishing industry. You take the whole big picture and figure out now what do we do? And I think that applies and they use that for labour contractors – the problem we may have again is with that is that the Board has this funny situation with labour contractors that they can be both. I think what we are going to end up with at the end of the day no matter how you do it or the definition that you put in – once you make a finding that they are something - let them be that. If you find in the situation that they are a worker – then they are a worker unless significant changes happen and then you come back to the Board and say the facts have changed. If you find that they are independent then they are independent. It shouldn’t be a matter that if I register I’m independent and I’m no longer registered I’m a worker.
• Q: The problem seems to be where this test gets applied after the accident has occurred? And that seems to be most of the time.
• A: In a lot of cases.
• Q: So how do you get around that – you’ve acknowledged that you can’t – it’s very difficult for the Board to audit each application for registration to apply this test.
• A: Now how do you get around that – when you get to someone who should know that they are an employer should give it thought; we are going to talk about section 47.2 this afternoon. What should be in the Act to ensure motivation for its compliance? Other than that what can the Board do? You know – you are always going to get situations where it is reasonable for the two parties to think that we are not in an employment situation. I understand the concern that there ought to be certain employers that may want to take advantage of the situation. But I’m not talking about the nominals, I’m talking about the average and I come back to the homeowner. No one I’ve ever talked to that has had a renovation when I say by the way have you called the Workers' Compensation Board has ever said – yes. Because you don’t think about it. So there is no easy answer Mr. Chairman on how do you do that. There’s just got to be some sort of communication avenue that the Board adopts as communication policy in how we are going to get out – and communicate as widely as we can some of these consequences and obligations and entitlements.
• Q: Seems to come down to who bears the risk between the two parties and the answer is not a registration that should have been or possible could have been?
• A: And I think that comes down to again and it is usually after the fact what was the nature of the relationship? And unfortunately the risk is going to be borne by one or the other that may if they had the information in advance would never have gotten into that situation.
• I think I’ll move off of dependent contractors unless there’s other questions.
• Very briefly then I’d like to touch on the Aboriginal workers issue then. There may not be a problem but that doesn’t mean the Commissioners shouldn’t give it a quick thought on whether something has to be done. The problem was before July 1994 the Board had a policy that there would be no coverage with respect to band members engaged in band activity on a reserve unless the band had requested such coverage and had paid the required assessments i.e. voluntary coverage. And the reason for that was the Board believed that pursuant to the Indian Act they could not enforce the collection of assessments from Indian bands with respect to work on the reserve. So there was a question of if you want the coverage you have to pay – we are not going to make other employers pay for your coverage. The Isaac Case in 1994 which is found in the Reporter Series – the Workers' Compensation Board Reporter Series – volume 10, page 715 by the BC Court of Appeal said – no. That doesn’t flow – there was a band member that died from an accident while working a logging operation on the reserve and the Board denied coverage based on the above policy – they were not – the band was not voluntarily covered. The Court of Appeal said we could find no express provision that is the key to this case in the Act which exempted the Board from its obligation to pay compensation but due to the fact that the employer failed to pay contributions to the fund or that the Board was unable to collect those assessments. The court then referred to the provision that’s found in Alberta. And that’s at page 724 and I won’t read it now and then noted that in fact there was a regulation in Alberta which did exempt Indian bands unless they voluntarily sought coverage and that regulation was found to be intraveris by the Alberta Court of Appeal. And we don’t have anything like that in our legislation. Now Mr. Dugas explained that after the Isaac case now they demand mandatory coverage of the band – he said there were 213 covered – I wasn’t quite sure if that meant they were all covered – whether there’s more than 213 or not. But it doesn’t answer the question still. The Board may say that it is mandatorily covered but that doesn’t solve the problem of whether there is an issue on assessments and collections what happens there? And if there is such an issue again in my submission the solution is voluntary coverage as it is in Alberta as it was here without a statute allowing that. And then the band would make a decision on whether they want to provide such voluntary coverage or not. I do not have an answer to the legal question – if the Commission does have independent researchers in answering the legal question from the viewpoint of you can be mandatorily registered unless assessments can be collected from a band then I don’t think it is an issue. Because the Board has moved toward coverage.
• For proprietor; partners who incorporate – here the issue is an incorporated company generally is treated as an employer so anybody who works for the company is found to be a worker – doesn’t matter who you are – you can be active shareholder, director, and anybody else who we would consider to be a worker. But there’s an exception and an anomaly and those are why I’m raising the issue. I’ve provided you excerpts from the Assessment Manual – that should have been the top document. The first is two pages from policy 20.30.20 and they go on for four pages but you have enough paper so I provided the relevance for what I needed and the last page is a page from a different policy. I want to start with page two of 20.30.20, which is the second page in the package. So it says, "Independent firms include the following: includes incorporated companies under D. [but then there are the exceptions] unless it is a personal service corporation." And what is a personal service corporation? It‘s one where its purpose is where no help other than the principle active shareholders are employed and that if the firm is not incorporated the principle active shareholders will clearly be workers and fall into the worker category. So we get rid of the corporate entity from the viewpoint of – if we look at a personal service corporation and we think it’s a worker then that worker is going to be covered under the Act as a worker for that employer that they are working for. And if you take my law firm – we certainly had an associate that had corporation for tax purposes – under this policy for tax purposes the corporation is fine; for Workers' Compensation Board purposes it’s not. I don’t have a problem with that. The problem is the anomaly the other way around. And we brought that case to the Workers' Compensation Board – to the Appeal Division with respect to lawyers – I was retained by the Law Society – to say that lawyers were able to incorporate – about then – 1992 – somewhere around then – the first time for tax – taxability. And they did. And a lot of sole proprietors incorporated and all of a sudden they found they now had to register for Workers' Compensation Board and pay Workers' Compensation Board and all the wonderful things that go with Workers' Compensation Board. And so we went to the Appeal Division and said we should have the same exception. We said a bunch of things – but we said we should have the same exception – if the personal service corporation – and you are not going to look at the identity – if it is a worker why would you look at if it is a sole proprietor or a partner? And I pointed to the decision and you can read their answer – it’s reported in 1995 – 11WCR327 – and the answer was employers only have the right to come on error of law, contravention of published policy, and error of fact. And we couldn’t prove any of those – there was no contravention of published policy – the policy says if you are a worker otherwise then you disregard – it doesn’t talk about what would happen if you would be independent otherwise and so they said the policy stands. I think it has to be looked at – I think it’s an anomaly in the scenario – if we are going to give a personal service corporations a separate identity it probably should be for both subject to the fear of I understand of some employers taking advantage of that. If you are not going to give a personal identity why do it for a sole proprietor who does it only for tax reasons?
• The anomaly is on the next page. This is from 20.30.30 – and on 20.30.30 it deals with the registration of corporations. And it deals with the situation of the company being registered and the active principle gets injured. And you’ll see here that that’s the only time the active principle who is a worker will not be covered. They get no compensation. And the reason is it says here under point 2 except under unusual circumstances a person who is in essence both a worker and a employer cannot be given the benefit to do to a worker unless that person’s obligations have been met under the Act as an employer. It is a very anomalous situation – no other situation does the Board get into the situation that you are a worker but we’ll call you an employer but we are not going to pay you because you got injured. Either they are a worker and they are entitled to it or they understand that this corporate entity is sometimes artificial and can not always use it. Well, then, there’s good reason not always to use it other than to deny compensation. So the recommendation would be that personal service corporations should be treated the same for both. And if – and if it is found to be a worker underneath that they should be a worker – if it is found that they are found to be independent underneath that they should have the option of personal optional protection.
• For time I won’t deal with Section 51; you have full submissions on it. Section 51 to briefly state the employer community is looking to get rid of Section 51. Section 51 is the one where the principle is subject to the pay the assessments of the contractor if they don’t pay. Here we’ve got the person registered; they just didn’t pay. And again it is an unfair situation that an unknown go back to the homeowner. So now we got lucky they were registered but they are not paying; why do I have to pay their assessments? Why shouldn’t this be like any other big company or company and have a bad debt reserve? And charge it, as they need to every time as a reserve to the Accident Fund; it would be a nominal charge I believe but Mr. Dugas didn’t have the numbers. For all employers as opposed to one particular employer didn’t know and a lot of times you don’t find out until a year or two later that you have this obligation and the relationship is over anyways. Mr. Dugas referred to clearance letters – the problem with clearance letters is they are always out of date. They – assessments are always paid in arrears so you can phone today and find out yeah they were in good shape but last year in December.
• To finish off who…..
• Q: Should a general contractor on a construction site have a responsibility for - a percent of the responsibility to ensure the workers that come on the site are covered?
• A: Should a general contractor have a – certainly in the regulations that I’m familiar with – they have a responsibility if they are the prime contractor on the safety side. When section 51 first came in it was brought in for construction and forestry. It was found to be those were industries where there a lot of contractors using – that was in answer to your question – found that generals in those industries should have that knowledge and the answer is probably yes, they should have that knowledge. Should they be responsible for the assessments again I get back to the problem of having distinctions between certain industries now and maybe that’s the way to go – that forestry and construction would be on the prime or the general – for small business and homeowners or whatever it won’t be. That starts creating distinctions in – that I’m personally not comfortable with.
• Q: Because of the gypsy-like status is what I was thinking of – a lot of these people who work in these industries – that they are the ones who know where these people are at one given time – isn’t it be reasonable that they be the main – that they ensure that the coverage exists? When it is reasonably expected that these people be covered?
• A: It’s reasonable if you are coming to the point and saying that they are the worker as opposed to the principle contractor – if we agree that they are independent – then I don’t think it is reasonable to have those obligations on them – they are both independent firms. As should the prime be the one that has the information to pass on to the subcontractor – I have no problem with that. That’s a good way of communicating in the construction industry. That the general would pass down to everybody. Are you saying that the general has to have the responsibility every three months to check all the subs on the site and making sure that the subs use for subs are done that? I’m not sure that I agree that that’s reasonable on the prime contractor.
• Q: Who should be responsible?
• A: If it is an independent firm I think every employer has their own responsibility and they have to accept that responsibility. And they are responsible for their own registration requirements and assessment payments. And there is no doubt we are going to have bad debts. There is no doubt that all assessments are going to be paid. The solution in my submission is that the system as a whole pay for that. As opposed to any particular contractor having to pay for that.
• Mr. Steeves’ submission; again I don’t think the panel has to deal with Decision 255 – there’s a lot of later decisions. There’s one reported at 1995 12WCR7 – there’s an unreported decision – 1996 – 1327. They go through all the factors that you look at when you determine worker, labour contractor, or independent contractor. Mr. Steeves has asked to find the courier drivers that have their own vehicles to be workers – I think that’s a little far for this Royal Commission to go into individual situations like that. I think what the Royal Commission should be doing is determining general principles that the Board can apply and those general principles result in a review of what happens to the courier industry. But if they Royal Commission is going to specifically make a finding to deal with a particular industry I’m not sure that industry is aware that is going to happen or have made submissions. There may be facts that we don’t know about that have led to that conclusion. That should be explored so I would recommend caution on going out with a specific industry and saying that this should be covered.
• That’s it for whom.
• I’ll just take five minutes then and take questions at the end and that’ll be that. I have three topics to cover and I’ll do them very quickly under what. The three topics I want to cover under what are section 5.3, protective reassignment – if there is no time I will push that off to the Vocational Rehabilitation day, and a quick comment on normal body motions.
• Section 5.3 – you had a bit of a discussion on the alcohol issue – this is where I think it falls under. Section 5.3 is the one that talks about serious and willful misconduct and that compensation is not payable where the worker is – has such conduct and there is a proviso – there’s two provisos – first he has to be solely because of his serious and willful misconduct and the second proviso is that they have serious or permanent disability they get compensation. In my submission that doesn’t make any sense. When you look at section 5.3 you have to go back and ask what could the purpose have been here. In our submission the purpose of putting in an exclusion of compensation for serious and willful misconduct is it is a recognition that takes you outside of the parameters of employment. Alcoholism for example coming to work impaired may be that. Driving impaired, in my submission would certainly be that. And so if you make a finding that there is serious and willful misconduct and you accept the proposition that takes you outside of employment it is difficult to understand how the employment relationship is brought back in simply because there is severity of the nature of the injury. This is what section 5.3 states. And again I think the problem was identified through Mr. Pinto’s evidence – he’s not aware of any case where it’s been used.
• And you look at other sections – you look there – in the policy there is a horse play and what it says on the horseplay is this, "a worker who is injured through participation in horseplay is not for that reason alone denied compensation. The conduct of the claimant which caused the injury must be examined to determine whether it constituted a substantial deviation from the course of the employment. So here the language it is substantial deviation. I have to ask the question – What’s the difference between substantial deviation and serious and willful misconduct? If one were to assume that if you have been found to have committed serious and willful misconduct you probably have substantially deviated from the employment.
• Q: What I think I recall is that serious injury even of itself is not an insignificant consequence and you might say penalty for misconduct – and is it then to deny compensation on top of that some kind of instance of double penalty?
• A: I think – the panel – appreciating – has to be careful of sympathies; I understand that – I have dealt with workers that have come in – I did pro bono work and dealt with workers; I understand what we’re thinking – the issue is not the severity – the issue is did it arise out of the course of employment? If the answer is no – to then say haven’t they faced enough misfortune? Shouldn’t we compensate them – I don’t think is relevant any more. No matter how distasteful or unsympathetic that may sound. And the example is alcohol – a person and there have been cases where they have accepted it. And it comes to solely sometimes. There are cases where a person goes out and gets drunk three or four times over the limit and gets back in the car and drives and gets killed. And the question is whether or not they are still in their employment when they did that – not whether they had a serious injury – we know they had a serious injury. If the answer is that they were still in their employment then they should be compensated. If the answer is no they are not in employment – well I don’t understand why now that they’ve suffered a serious injury that brings them back into employment. I think that is where the problem with section 5.3 is coming. They seem to mix that up.
• Q: So what do you want to do with the test?
• A: We want to get rid of the proviso and we want to change the word solely to primarily. It’s very difficult to ever find a situation where solely be caused by something. I will deal with protective reassignment another day.
• And last is normal body motion; I think the only thing I want to say there is you’ve heard Mr. Pinto say that maybe we need clearer lines and Mr. Massing give a caution at the very end of the discussion about when you move a line all you do is make new controversies; you are just taking a grey area and moving it. I think the policy made sense for normal body motion – it’s another factual case and in each and every case you are going to have to weigh the facts to determine whether or not there was some nexus with employment. Some cause; something more than just being at work when that injury happened and these are not easy cases. But moving the line isn’t going to make them any easier. And I’m not sure when you read the whole policy there aren’t a lot of room to figure out where the line is going to go. I do want to correct one point that I think Mr. Steeves – it is just an elaboration on. I provided you the excerpt; the full excerpt from the manual dealing with the body motions. It is section 15.20 probably the third document as we go through. Mr. Steeves had used an example, which he said when a person bends down to pick up a tool that would be covered. You have to go back and read the beginning of that paragraph that is on page 39. And what the discussion already talks about is how you determine whether a normal body motion is work related or not and then it goes on to the very last paragraph. "Simply by adding a few more factors to these situations or others it might well be possible in individual cases to find that a work relationship existed. Here is the key sentence that was missing. For example – in these examples are not to be taken out of context without taking into consideration the discussion above. And then when you turn the page the second example is the one that Mr. Steeves put in about dropping the tool and leading the person that would be accepted. I don’t think that is what the policy says. It might be and it might not be and you have to look at the whole discussion to determine what might happen there.
• That’s all I need to say on body motions. A question came up on section 5.4; I have no submissions on 5.4 but I want to point you to page 188 and 189 of the Tysoe Commission. That’s the presumption on case of if an accident occurs in the course of employment, it’s presumed unless it is arising out of and vice versa. And what I explained when it came up is that the purposes of section 5.4 – the accident is considered to be the traumatic incident – not a fortuitous event – you’ll see that in the Tysoe Commission pages 188 and 189 and you’ll see a brief discussion of that in a reported decision – 1992 – 8 WCR 165 – pages 189 and 190.
• Q: Just so that I’m sure on that - 5.4 deals with traumatic incidents which means for example if you are struck by something that there then would be a presumption that the injury sustained not only occurred at work but was caused by work.
• A: That’s correct.
• Q: Is that the word it uses? Traumatic incident or does it use accident?
• A: It just uses accident.
• Q: Is it policy that’s defined accident to mean traumatic incident?
• A: No, I think that policy does talk about it – in that situation it requires that traumatic incident or the case that I referred to certainly did and Mr. Tysoe added the words in 1966 – in cases where the injury is caused by accident. And you’ll see in his discussion that he did that to get across that there is a difference between a presumptive clause and an entitlement clause.
• Q: The definition in the Act doesn’t appear to be an all-inclusive definition.
• A: I agree.
• Q: So if you are at work and you bend over to pick up a screwdriver and you throw your back out – does Section 5.4 apply or not?
• A: I think the Board’s policy would be no unless there was a – I don’t think 5.4 applies- I’m thinking of 5.1 when I’m answering no less – whether it would be compensable or not.
• Q: The tort test to determine whether or not causation is established with respect to any incident or any condition rather is similar to this causative significant – causative significance test I understand that is in policy - do you see any difference –in other words as long as it’s not on a diminimus basis – I think more than that should trigger entitlement for compensation for the entire condition?
• A: That’s a difficult one; I think when you get the injuries that is what they are looking for – for something with causative significance – and I think your answer would be yes. On occupational disease – which we won’t deal with today – the answer may not be that. I think we get more into the balance of probabilities when we get into occupational disease that just causative significance. But I do think in injuries yes they are looking for causative significance and then it is accepted.
• Q: Is it your experience that the test is fairly applied?
• A: Fairly? Injuries are a much easier case – I don’t find the same sort of problems with injuries that I do with occupational disease so I think it is consistently applied and I think you’ll find on the statistics the vast majority – I think it was like 96% of whatever the cases are accepted. Most employers I don’t think dispute a lot of those injuries – it’s been the cases I’ve been involved are we think someone came to work with an injury and five minutes into it we have an injury. It’s a different kind of case.
• JIM SAYRE
• I hope that all of you have the addition to the written submission that I’ve distributed at the beginning of the day. It starts at page nine. Pages 9 and 10 cover the issues that we are talking about this morning. Who is covered by the workers' compensation system and what is covered?
• I’m going to agree in part with a good deal of what both of my predecessors have said to you. I’m going to agree especially that the issue of contractors; whether they are called independent or dependent or labour is a particularly complicated one and is one that is probably not going to end up with a nice, clear, clean cut, bright line solution no matter how much attention we pay to it. At the same time I think I can suggest some perspectives that may be of assistance to the Royal Commission in devising a test that focuses most appropriately on issues that are relevant to workers' compensation and as opposed to some of the issues or in addition to some of the issues that may be more relevant in a labour relations context or other contexts. And I want to make sure that I get a chance to describe to you a couple of fact situations that I think will help to illuminate the issue that are quite different from some of the circumstances that have been discussed earlier. So I’m going to spend most of my time on the who issue but I do have some submissions on what as well that are largely set out in the paper and I will try to save some time to get to those too.
• Before beginning the question of who or before I quickly review what I’ve set out in the written submission I thought that I would mention to you the other area of law that I have most experience with – employment insurance – that also had to deal with exactly the same issue – who for the purposes of that legislation is to be considered an employee and who is considered to be a contractor because of course that determines whether the person’s income is insurable or not and whether the person who would be the employer is obliged to pay premiums.
• There is a separate appeal system for such systems – for such issues under the Employment Insurance Act – the appeals go first are reviewed by Revenue Canada – then go to the tax court of Canada – ultimately to the Federal Court of Appeal on a judicial review from a decision of the tax court. Leading case is called Wee Doors and it just – you may be somewhat amused to know that what the Federal Court of Appeal does in that case is say while the law has looked at a number of different ways of determining this question – one of them is a four fold test; profit/loss; ownership of tools; and so on. Another one is the control test; another test is the test of whose business is it? And I think in each case they cited some leading authority; some of them from English Court of Appeal which enunciated these tests. The conclusion they came to is that really nothing relieves the tax court judge from having to look at all of all of the circumstances of the individual facts before him and weigh them in order to come to the appropriate conclusion in that particular case. So they didn’t - they expressly refrained from finding a nice, clean cut fact or type of test that would lead to a clear answer in each situation because they essentially said well this – by definition this is a grey area and we just can’t come up with one. I don’t know whether we can do any better than that in the end for compensation but there are different considerations when one is dealing with the workers' compensation Act and when one is dealing with the Employment Insurance Act or the labour standards legislation or the labour code and some of those different considerations may conceivably lead to a different result for workers' compensation than would be the case under the other laws.
• Before going any further on that issue I want to turn to the submissions I’ve given you – on page 9 – we see two major problems with the – arising from the – or problem areas arising from the question of who is covered. The first is that essentially is what we have been talking about this morning relates to people who are in this grey area; people who are in our view and this is an area that we are most concerned with – people who should be covered as workers but are forced by economic circumstances or by the insistence of the people who have the work to offer to them to treat themselves as independent contractors. There’s a variety of industries in which that situation can arise – courier drivers is certainly one the Royal Commission has heard about before – another one that I will be describing to you because I just learned a lot about it this morning – while we were waiting due to traffic delays occurs in the logging industry and perhaps is the most serious situation from a workers' compensation standpoint because of the negative safety consequences that flow from the way in which this situation is currently existing.
• And the third that I will just mention is which our office is presently handling –is before the BC Court of Appeal involving a person who had a previous compensation claim and had a permanent disability and was hired by a truck dealership to clean trucks –and because he had a serious back and leg disability the dealership said we won’t – effectively said – at least this is his position – we will not hire you as an employee but we will hire you as a contractor. But you have to get your own compo number – and he accepted that because he wanted the work – years later when he had a very minor injury and went to the Workers' Compensation Board they said you’re not a contractor; you’re a worker. They told the dealership that they would have to pay for him and at that point his contract was terminated – the dealership would no longer retain his services – he made a human rights complaint – human rights said that’s not discrimination in our view – we disagree with that and that is an issue that is presently before the BC Court of Appeal.
• So it raises an interesting perspective in a sense of penalty which was imposed on this person indirectly for having had a previous claim and being disabled from a previous claim and that the penalty consisting of being forced by a later employer to bear the burden of his own compensation coverage because that employer was apparently afraid of the experience rating assessment consequences of having a person who might be vulnerable to further injury on their workforce. The employer – part of the evidence is that – is the previous person who had done that cleaning work was in fact treated as an employee by the dealership and after he was let go the people who were hired to replace him were treated as employees so he was treated differently apparently because the employer thought he was a walking bomb so to speak in terms of risk of further injury.
• It is our view that the Board has to be particularly diligent in protecting people who are in a vulnerable circumstance and who are within this grey area where they can be characterized by the person in a dominant economic position as being independent and thereby forced to bear the burden of their own compensation coverage.
• And the other situation that I wanted to describe to you –the person who told me is in the audience today – but I’m not doing this as evidence - it is a circumstance that is relatively common throughout the logging industry. A large forest company has timber rights –they hire a logging company - logging contractor to do the cutting for them – that’s a contract – the logging contractor as I am advised then hires people to actually go out and do the work –and when I say hire I use that term advisedly because what they do is they tell these people that they are to be treated as what they are called in the parlance - day raters. They are given a certain amount of flat rate of money per day and told that they have to have their own compo numbers. Now this includes not only fallers who may own a chainsaw – also apparently buckers and skidder operators who do not own a skidder. People are driven to the worksite by the company that owns the logging contract – they are told what areas to work on, what hours to work, what to get done and if they don’t get the work done their contracts so to speak are terminated. And in most respects that I’m familiar with and in the way the law would normally deal with such situations such people should be treated as employees – what particularly interested me was some of the consequences which were described that flowed from this situation – for example – and I’m going to be talking – I will be talking in the second half of page 9 about the concerns that we have about the optional amount protection under personal optional protection coverage which motivates some people to under insure themselves in order to save some money. Well I was advised that it is quite common on these sites for people who suffer injuries as long as they are not totally disabling to the point that the person cannot go on with the work that day – for people not to make claims at all – not just because they don’t want to lose the work for the rest of the day but because they know their compensation rate is going to go up due to experience rating assessment – so the effect of the combination of being treated as an employer when in fact they are a worker and the irrational nature of experience rating assessment is that people are actually not reporting injuries in order to keep their rates down. And of course there is always the balance that any person in the Personal optional protection area weighs in their mind – how much protection can I afford or how much protection to I want to afford? As opposed to other things that I could do with that amount of money. Ironically the dilemma snowballs for a worker who suffers an injury because they know if they make the claim the compensation rate is going to go up and they are going to pay even more for that same level of coverage. So the effect of having an injury might be to have to choose between buying even less coverage next year because he can’t afford the same amount or foregoing benefits for a condition which if a person doesn’t have it treated and doesn’t stay off work until he recovers can become permanent or chronic.
• It is a real dilemma that these people are in because of the fact that they are permitted by the system to be treated as independent contractors as opposed to workers.
• Q: In the logging industry is the motive of logging contractor to avoid the assessments or are there other motivations at work as well in terms of cost?
• A: Obviously I can’t tell what’s in their minds – I imagine that there are a lot of economic reasons why the company with the contract finds it advantageous to do this. The interesting – the other interesting result of that situation however is that the company and this is the other thing that I hadn’t gotten to with what I was told – is that this worker found himself on one occasion working on a steep hillside. In order to comply with the Forest Practices Act he had to do things that in his opinion violated workers' compensation regulations and he told me he talked to the Compensation inspector about this and was told well it is out of my hands –you’ll have to make your own decision – you’re a contractor. The consequence from a broad perspective of how the Workers' Compensation Board is going to accomplish one of its major goals is to prevent injuries is that the party in the best position to control the risk of injury in that workplace is obviously the head contractor –the company that decides which hillsides get logged, how they get logged, who does it, what techniques are followed, and so on and because all of the people doing the work are treated as independent contractors with their own compo numbers that head contractor suffers no consequences and has no motivation to ensure safety. In fact they have every motivation to simply get as much work done as possible and if somebody gets hurt the chances are quite realistic that they may not even report it. And if they do report it it is their experience rating assessment – not the contractor’s experience rating assessment that will go up. So it is perverse situation – we think that has some messages to the Royal Commission in terms of the meaningfulness of experience rating assessment as a tool for preventing injuries which is not what we are talking about this morning primarily but it obviously also has some very important things to say about the rules which the Board now follows in deciding whether to treat people as contractors or not. In that situation I was strongly agree with Mr. Steeves’ recommendation that people in that situation should be treated as a matter of policy and/or law as workers of the company which is in control of the worksite and which is best able to carry out the goals of the workers' compensation Act which is not only to – which is to be able to pay assessments and protect workers and compensate workers who are injured but perhaps more importantly in this situation to try and make sure that people are not injured. And the only way that that can be done is to – is to have them covered as employees of the company that actually has the contract and who controls the work and I started by saying that I agree with a lot of what both of my predecessors have said because it struck me listening to Mr. Winter talking about the fishing instance that he described that concerns number three and four that he described about the fish boat situation were exactly parallel to the situation that I’ve just described – we have a situation in which the – in which the person who is in the position to control safety – in that case the fish boat owner would be able to decide when it’s safe to be fishing and what risks to – are too great to shut the operation down for the day – there’s no consequences – it is not required to be treated as an employer.
• Now the second concern we set out in the submission is the treatment of people who are given the choice of whether they should have compensation coverage or not – and – to telescope it a bit and get to the end – it is our position that a person in some areas and there are going to be grey areas and because of the number and complexity of the relationships people set up in terms of how people go about their – gaining their livelihood –there are going to be grey areas – there’s no getting around that and there are probably going to be situations in which the Royal Commission feels that people should have some option about whether to be covered or not. One of the principles that we support is the autonomy of workers generally over their own lives so we’re against giving people choices but we do not think it is fair to give people the choice which essentially amounts to a trap. The trouble with personal optional protection is that a worker is induced to purchase less coverage than the actual amount of what they will lose if they are disabled yet because of the fact that when they do that they buy into the workers' compensation Act which is a statutory system – it is not a system of private insurance like Prudential or State Farm or some other company that is out there that may be selling disability insurance – because they are buying into a statutory system they also buy into the bar to litigation – so while they may only insure half or less than half of their earning capacity – if they are injured and the person responsible for that injury is also covered by the Act and unless the Royal Commission agrees with what I said yesterday about removing that bar in some situations they will be unable to take any legal action to recover the full amount of compensation – that is of course is not true from any other kind of voluntary insurance. To go out and buy insurance for disability purposes there’s certainly no discouragement on the part of the insurance company from going out and collecting full compensation through the court system – if someone else is to blame for the injury. And in fact in some situations the company may become subrogated to that claim and might do so in the disabled person’s name if – depending on the terms of the policy.
• Q: I was just going to say are you in fact moving towards a recommendation that personal optional protection may be - should be – be purchased through the private sector but may be should allow provisions for it to be purchased through the private sector and then have recourse to the courts – to go along hand in hand with that?
• A: Well I think it can be now; I think it’s up – I believe the private insurance industry does offer disability insurance – at least some companies do and in effect that is what people can do – they can go and make their own contract and then of course their right to sue is not interfered with –what I’m concerned about is the Board in effect competing in that area – there may be very good reasons why the Board should offer that because not everybody can get it from the private sector –not everybody can get it affordably – and the Board is a very stable source of coverage that covers a very broad range of disabilities and provides many services – I certainly don’t want a situation that my criticisms of the Board –that we don’t appreciate the advantages of the Workers' Compensation Board –but the problem is that people should not be allowed to buy inadequate coverage which then deprives them the ability to recover from the person who has caused the injury- it is actually quite perverse when one thinks of it because one of the functions of the tort system is to discourage careless and reckless conduct and imposing the consequences on people who are careless and reckless –it’s the claim that the person that escapes free or their insurance company that essentially gets a windfall in that situation because there is no option to sue.
• Q: I’m sorry - didn’t Mr. Justice Tysoe in his report that isn’t the reality that 75% of workers wouldn’t have any action in tort or anybody to sue in any event?
• A: Well, I think so – yes – and I would go further and even if you restored the complete right to sue including the right to sue your own employer in all circumstances a very small percentage of workers – even if they theoretically had a possible claim would choose to pursue it. I’m not talking about a floodgate of cases coming in to the court in which everybody goes there instead of going to the Board – there’s enormous advantages in being able to come to the Board and without the costs of litigation and the risks and so on.
• Q: So given just what you’ve just said is it logical then that perhaps one way to test the assumptions that we’ve just heard from you that would be to open up all types of insurance only through the private sector and force everyone through that system instead of coming through this system of coming through the Workers' Compensation Board?
• A: My – I would prefer and what I’ve recommended here is that the Board continues to offer personal optional protection but it insists that when a person buys it – they buy it for the full amount of their earnings as demonstrated by their recent past earnings history. That would have to be proven but…
• Q: So you see it being set up in parallel to a private sector system – you would have to apply the same principles wouldn’t you – you would be competing with the private sector which may or may not – it may be a problem or not be a problem but you could do that -–you could set up that type of system?
• A: My concern about that suggestion is that I – the private sector tends to want to take the easy cases and the good risks and avoid the bad risks – I mean it is the same reason that motivated the government years ago to initiate public auto insurance is that auto insurance was out of reach for many groups that were considered to be a high risk. Some of who undeservedly like the new driver who had never had an accident but that because they were young and male they were considered to be in a high-risk group. I would not want to see personal optional protection discontinued because there may be people that we’ve been talking about this morning that would be considered too risky to be sold disability protection by the private sector– a faller for example – who was in fact an independent contractor – private insurance companies might not want to touch them because of the high risk of injury in that area.
• Q: But we will never know?
• A: I’d hate to see an experiment which results in people being left without protection – that’s all I’m saying – is that there’s a valid social purpose in having personal optional protection I just don’t think it should serve as a catch-22 where the person who buys it is induced to buy less than they need and when they become totally disabled find that they can't live on what they are receiving.
• Q: When you say they are induced to buy less than they need you mean because it’s cheaper and they are buying –they are making a conscious decision to inadequately protect themselves –it is like you and I deciding to buy life insurance to protect out families or not and then we die and our families are destitute – I mean it is not an inducement other than the sense that you make a judgement – in that you want to spend your money in one way or another isn’t it?
• A: No, I quite agree with that – the distinction that I will come back to however is that in no other system where one buys voluntary coverage and takes the chance on whether they have enough or not do they lose the recourse to the court doing so. It’s only when they come to the Board that that happens to them.
• Unless there are any other questions I think I should move on to the "What Is Covered"
• [HEARING TERMINATED FOR THE NOON HOUR]

April 7, 1998 Afternoon Session

Commissioner staff: GG, GS, OE, TR, D , JS

Notetaker: Judy Stott

• I would like to conclude the discussion about the contractor situation
• I had a slightly different perspective on the balance that the Board might strike that would most appropriately reflect the value of the goals of Worker’s Compensation
• I do not agree that you can look solely at economic dependence as the determiner of whether something is covered or not
• I also don’t think that you could look solely at whether the person is doing work for one entity at the time or not
• This occurred to me when that question came up and I think it arose in connection with a lawyer
• For example, there were probably members of O.J.’s legal team that did nothing else for more than a year but work on his case and I don’t think that made them his employees
• We need something a little more sophisticated and broad than just the question of how many clients do you have?
• We suggest that in addition to economic dependence, which is a highly relevant consideration – it is quite clear when you look at the logging situation that I was describing that that is the primary feature of that situation that seems to cry out for some different kind of treatment
• People who are being treated as independent operators, were in fact totally dependent
• Their only choice in the whole matter was do you want to work or do you want to be unemployed and if you want to work then this is the relationship that you are going to have period and everything else was under control of the company with the contract
• We think that the other test should be who has the ability to control safety and promote safe work practices
• In that case it is clear that it was the head company which defined what work was done, where it was done, how it was done, who did it, etc. so it would strongly favour having them regarded as the employer
• In the case of the homeowner situation that Mr. Winter described I am inclined to agree with him
• I have never understood the policy reason of saying that somebody who hires someone to come in and do some carpentry work for them – you are probably hiring them because you are not an experienced carpenter who knows how to supervise that kind of work - and why should that person suddenly have the legal obligations of an employer
• It makes more sense to say that the person who is holding themselves out as the expert – in that case the contractor or the trades person – should be responsible for their own safety and the safety of any employees they may bring with them

Q: Would the homeowner be exempted then?

A: Unless there is some special reason for the homeowner to be regarded as an employer and I don’t know what that would be. I suppose if the homeowner was in the business of developing properties and he bought some vacant land to build a house I think that is quite different from renovations. You can have a bit of a blend. I know there are some people who buy older houses and one way they make their money is to do a lot of work on them and get a lot more money when they sell them later but they live in them in the mean time. Somebody who does that and does develop expertise thus being the dominant person in the relationship perhaps should be regarded as an employer. For that matter, the fact that person was engaged in that sort of a business practice on a regular basis would effect the tax treatment of what might be their capital gain. You have to look at the facts

Q: You then draw a distinction between the two examples Mr. Winter used and see differences between them – one being the homeowner who enters into a contractual relationship with someone to do a job and then there is the book store example, which is a business relationship. Do you see that as having a different relationship than the homeowner relationship or no?

A: I think the business relationship one is a little less clear but I think the focus needs to be the person who is potentially going to be more or less artificially regarded as the employer. That is somebody who is expected to have the knowledge and be aware that they are expected to ensure a safe work place and if they were would they know how to do that? Somebody who is having someone build book shelves in their store while they are moving in has a million other things on their mind. I don’t know if they are in any better position than a homeowner building a new sunroom on the back of the house to try and ensure a safe work place. I think both persons are relying on the people hired to do the job to do the job safely.

Q: Doesn’t that move you towards eliminating all small businesses?

A: Eliminating them in what sense?

Q: The way you are interpreting it they have to be knowledgeable enough to be aware that they should be covered and anyone they hire from outside should be covered.

A: I think that what I understood the employer’s position to be that people who hire themselves out to do work of that sort are the ones that have the risk of injury. Generally speaking if they haven’t entered into an employment relationship and they are going around saying that they will do this job for X-dollars and that job for X-dollars it is their business and they should be responsible for their own assessments. I don’t have a logical problem with that. The trouble with any of these situations is that as we go further toward the gray area we get more into situations like the loggers, which clearly should lead to a different result. Somewhere in the middle it is going to be very hard to choose. I think a focus on who is able to best control the risk of injury and the safety factors would be a very relevant and perhaps the most relevant consideration given what we are dealing with here.

To continue on to the "what question"

• Our position on the normal body motion issue is that it should not be an issue
• When ones looks at the kinds of things that leads people to get hurt at work it is a fairly rare case where one can say that that kind of motion could only have occurred in the course of employment
• Most of the time when people get hurt they are doing something whether it is climbing stairs, climbing a ladder, carrying boxes, etc. and it could have occurred off the job
• What is important is that it didn’t occur off the job and therefore is described at work
• I have a problem with the Board defining an easy example of someone who turns their head to look out the window as they are walking from one room to another
• If it is actually proven that turning their head is what caused their injury then the fact that turning your head can occur whether you are at work or not is not a good enough reason in principle to declare it non-compensable

• On the question of serious misconduct by the worker what concerns me is not so much that the worker who is flagrantly doing something that is completely outside the course of employment should be protected from an injury if they suffer
• If a worker loses their temper and walks over and punches out another employee and hurts their hand I would certainly not favour having the hand condition regarded as a compensable injury
• At the same time some of the concern I had was that employers would see this as a reason to say to a worker that they failed to follow one of the safety rules of the employer that was pointed out and therefore the injury is not covered
• That strikes me as a contradiction of the pretty fundamental principle that Worker’s Compensation is a no fault system and among other things it covers injuries that are the worker’s own fault
• If all workers paid attention to all safety rules and if they all paid strict attention to what they were doing then we would probably have less work related injuries but we are all human and the protection that the Act offers isn’t going to mean very much if we are constantly finding fault with the worker in some way and saying you failed to follow this particular rule so compensation doesn’t apply to you
• I would argue that the Board has it right now where they say only in cases where a worker has deviated so far from what their job is that in effect they are no longer in the course of their employment should the Board decline to cover the client
• I don’t have any problem with the balance the Board has struck on that particular question

• Stress
• I hate using the word because I think it is a misnomer
• I don’t think stress, in the way it is used by most people, is compensable
• When we talk about psychological disabilities that is not stress
• We are talking about diagnosed medical disabilities – situations where a worker has gone to a qualified medical practitioner, a psychiatrist in many cases, who says that they are suffering from an anxiety condition that has a name, attributes and symptoms
• It has been diagnosed and is being treated and there is no other apparent cause of that condition other than the activities that went on at work
• Then the issue is whether or not there is a reason that the Board should not cover it despite the language of Section 5 and 6 of the act simply because it didn’t arise out of a physical trauma or an accident
• Our answer is that the act doesn’t give the Board any legal authority to treat those conditions differently and secondly if the act is supposed to protect people from loss of income due to a disability suffered from work there is no reason why those conditions should be treated differently
• Multi-causation can obviously make it difficult to determine how much of the disability is from work and how much is from outside but that can be true of physical injuries
• It is quite shameful that very few psychological disabilities were actually accepted by the Board and that they were all accepted through the appeal process
• The Board simply does not ever accept that kind of a claim on its own
• In effect they have amended the act by practice and I think that is wrong
• Former chief appeal commissioner was pleading for the Board to come to grips with this problem, create some policy and give the Board some guidelines for what claims should be accepted and what factors ought to be looked at so that the claims can be treated fairly
• That hasn’t been done yet but it may be one of the things that the Commission can at least look at doing or make some suggestions about the kinds of broad factors that ought to be considered in dealing with claims of that nature
• There have been a couple of court cases that show it may not even be within the jurisdiction of the legislature if it wanted to do that, to exclude mental disabilities from the same protection that people with physical disabilities have
• More importantly if we look at purpose of act then why should they be treated differently if the injury is to their mind versus body

Q: Some of these jurisdictions, like California, compensated for stress and then as a result of the very high claims cost experience on an aggregate basis had to scale back if not entirely eliminate that coverage. Do you think that is a factor that has to be considered with respect to this issue of what kind of conditions can be covered or can be afforded to be covered. Is financial viability of the system a consideration with respect to this kind of an issue?

A: If it were really the case that offering equal protection to people with mental disabilities would bankrupt the system then yes it would have to be considered. I don’t think the California experience goes nearly that far but I don’t know enough of the details with respect to the kinds of decisions that they were making for one thing. Some of the injuries, like back injuries, that are more invisible than amputations are difficult to put a percentage disability on so I gather that putting percentage on mental disability would be even more difficult yet it is there. It has been recognized in virtually every area of the law that mental disabilities do exist and that mental disabilities are genuine medical conditions that can truly disable somebody. In some cases the disability can be more disabling then a physical disability might be. The challenge for the Board, and perhaps the commission, is to try and suggest some tests that will keep the cost of compensating for those conditions from skyrocketing out of control. As long as they keep turning these claims down there is no incentive on employers to make work places less a cause of such mental disabilities so the prevention goal is not met. No one is really looking at the treatment issues either because no one is paying for them except for the medical plans or private disability plans that may be paying for them. The Board doesn’t have the incentive that it has with other kinds of conditions to start developing a strategy for helping people with mental disabilities to get back to work quickly. I don’t know whether California made any efforts in that regard but it sounds like they didn’t do enough.

Starting with Mr. Winter

• The fishing industry is a complex problem because it is a complex industry – structurally, historically, etc.
• I am not going to tread into those waters except to say complex industry creates complex policy issues

Homeowner issue

• If a homeowner is also a contractor – they hire someone to clear the grounds, etc. – it is reasonable from public policy point of view to expect that person to pay assessments but if a homeowner hires a contractor to do exactly those functions then I think the situation is different
• I don’t mean to oversimplify it but I think it is a useful way to get us off in a policy discussion of it

We take issue on the employers’ point about construction and labour contractors

• He made comments about it being too confusing, too costly
• Starting point is that people need to understand that this is a legal system that imposes rights and responsibilities on the general public
• There is no issue of volunteerism here, this is not exercised as a free market, this is not a private decision about whether to buy insurance for your house or dental coverage for your kids
• The act requires these matters to be done
• It asserts to the public that there will be responsibilities
• People can say it is too confusing or costly and that may be true but at the end of the day society has said that through the Worker’s Compensation act these things have to be in place
• That is the broad policy objective of the act and it is the Board’s responsibility to apply that with some sensitivity

We take exception with the suggestion that in administering the policy the Board should err on the side of independence as opposed to talking about contractors

• There is no reason to err on any side
• The point is to apply the test for employment

It is relatively easy for us to sit here and say what if this or what if that and these would be the complicated issues

• Mr. Winter said you have to weigh the evidence in every case and that is why there is lawyers and the WCB and so on
• For the purposes of decision 255 – the issue is raised about assigning risk – the act through law assigns the risk
• Hopefully, the risk assigned in ideal circumstances is the same risk the market would make but there may be the difficult cases like the fishing industry where there is no congruencies and then the act will prevail
• It comes down to that, you can’t opt out

Aboriginal coverage

• The evidence that we heard from the Board is that enforcement is difficult on reserve land but it is not a major issue
• I don’t know what the concern is there
• Apart from that all bands in that class assume that risk of default

Independent firms, the individual corporation

• First of all there is the policy in 20.30 that is an incorporated company that hasn’t registered
• The point there, I think Mr. Winter called it an anomaly, was that if they haven’t registered and there is a problem then the Board won’t cover that worker if they are also the employer in a corporate sense
• By all appearance that seems punitive and perhaps it is
• It may be overly punitive or very hard because in those circumstances if an employer, not registered with Board, has an injury and the Board finds out about it then they immediately assess the cost of that injury against the employer
• In the circumstances of an employer/employee being the same person I don’t know why that shouldn’t be different
• There may be a reason to look at 20.30.30

Law corporations for employers

• There is no reason, in principle, why lawyers’ corporations should be treated differently then other corporations
• Lawyers incorporate for tax reasons and then when they have to pay some worker’s compensation assessments they start to make noises and that shouldn’t be given much time at all

Section 5.3

• There are some other issues here – perhaps some human rights charter issues with respect to discrimination on the basis of physical disability if there is a case of alcoholism
• Mr. Winter said that Mr. Pinto was not aware of any case where section 5.3 was used and that is not exactly what the evidence was
• On page 24 Mr. Pinto said that he was aware of the odd case where there were minor injuries and it had been used

Mr. Sayre’s submission

• His examples were useful
• E.g. the person cleaning the trucks
• Another example is the infamous case of Nike Canada where they had hired someone to put up a display at BC Place
• There was a lot of beer around and the worker went to a bar after leaving BC Place and then got into an accident and became a paraplegic
• Nike Canada was hit with $2.7 million in damages after it went to court
• It was established that the worker was already drunk before he left Canada Place to go to the bar so the employer had breached a duty to provide a safe work place
• There is some reason to believe that the damages may have been high and in the common law there may have been a contributory negligence issue - I understand that the matter was settled before it went to the Court of Appeals
• This is another example of why employers don’t want to be in court

With regards to POP and shouldn’t it be privatized

• Independent contractors could obtain POP in the private sector but I am not aware of to what extent it is being provided if at all
• Concerning the issue of whether it is more expensive or not if we are posing a serious economic question then I think we need to look at what economists say
• Economists say that it would cost more to privatize versus having it run by the State

California issue

• Mr. Burton said that the press coverage was exaggerated by a factor of 20 and that was because they used a percentage of the injury rate versus a percentage of the occupational disease rate
• The point of the relevance of the financial viability of the system is an important issue and one that is central to your work
• I think that Mr. Sayre is right that if the system is going to fall apart as a result of stress claims then that is obviously relevant and cost is always relevant
• That is rarely the case though and the system in California didn’t fall apart
• Treating it in broad policy terms I think the question is - assuming there is increased costs and assuming it is note worthy - what does that mean?
• Does that mean there is a medical problem on the work site or does it mean that the workers are making it up or is it some other reason?
• If, for example, it is an employer who has introduced new technology involving repetitive work and did not provide training for it, which resulted in a number of repetitive strain injuries then the injuries are compensable but it is also a preventable injury
• If the WCB doesn’t pick it up then the medical system has to pick it up or private carriers or workers pick it up or the worst case scenario is that we end up going in reverse to a time where the worker simply suffers because they have no treatment or economic compensation

Q: You chose the example of repetitive strain. What about an example where by some fluke you have an incompetent management causing stress in the work place throughout organization affecting many throughout the system. Is that stress issue under WCB or is it a labour relations issue?

A: I am going to take you through the appeal division decision I spoke to you about before and there are 3 steps in it. The first one is whether there is a psychological impairment. The second is whether there is a connection with the work and the third is whether there are personal circumstances involved.

You would apply that 3-part test and see where it takes you. Dealing more specifically with your question if the employer is irresponsible then it may be a work-related disability. At the same time I won’t say that a worker should be compensated because he says I can’t take it anymore you are just driving me nuts. Nor should a one-line note from a general physician saying this person needs time off because he is stressed out be compensated. We need to treat the serious disabilities seriously and others ones may not be part of the system. I say that the competence of the employer may be relevant to the worker’s compensation claim.

Q: You mentioned that the fishing issue is so complex. Tell me why Mr. Winter’s proposal of having the operator or owner of the vessel divide or pay the compensation is so complex?

A: It sounds right to me but you shouldn’t take my opinion on it.

TR: One of the reasons is that the vessel owner is not the employer, he is a partner of the crew and they share in the profits after the expenses are deducted. One of the expenses is the worker’s compensation assessment so that is why it is complex. If a fish boat loses money on the season they all lose money including the crew.

Winter: That doesn’t explain why the first commercial buyer ends up with the cost.

TR: No it doesn’t.

Steeves: And there are different levels too. A given level is their employer/employee relationship and some of them are crew on larger boats. Some of them get shares, some of them get wages so there are all sorts of different variations which add to the complexity of the industry.

The first thing I want to do is apply to you to change my role as one of explainer or clarifier. Given the depth of the discussion so far today and the excellent submissions by my friends I think the role of clarifying these complicated issues is perhaps a task eternal and not one that I am anxious to enter into. I think, rather what I would like to say is that on behalf of the Board I am here to render whatever assistance I can to you and your commission and to your council and to my friends. If I am brief and cautious it is because of the role that I see that I have that has been very kindly given to me and the Board in this process.

Issue of labour contractors

• The point that we would like to make is that the policy in regard to this is found under 20.30.20
• What is relevant is the statement on page 3 of 4 in regard to labour contractors – it should be considered by the commission in their deliberations
• In regards to labour contractors is says that registration for labour contractors is not mandatory but is allowed
• Those labour contractors who do not elect to be registered and any help they employ to assist them, which may include paid members of their family, are considered workers of the prime contractor or firm for who they are contracting so that firm is responsible for assessments and injury reporting
• Labour contractors are prima facie and at first instance workers
• Registration is allowed but it is not mandatory as the policy clearly states and my submission is that makes all the difference in the world if you start consideration of this complicated topic from that basis
• Look upon labour contractors as employers with a privilege or an allowance to register if they wish and I don’t mean to undermine or negate the consequences of that allowance or election
• I submit it is important to recognize their nature and the fact that it flows from Section 20.30.20
• They therefore have a status of workers but they are allowed to register and become labour contractors by choice or they may be required under special considerations
• E.g. The IPX case was mentioned in this regard and I think that when you apply the test that I respectfully submit to you in that case that was a judicial review by the employer who did not want to pay assessments on the case of the employees
• It was not a case of workers being denied coverage
• The Board proposes policy and those drivers are workers
• They are not exercising the election that they are labour contractors wanting to register
• That was a case where the Board said that these drivers are workers and we want you to pay assessments on their behalf
• Mr. Robertson made the point that these are not workers falling between the cracks and so it is not a coverage issue in that sense
• I do not undermine, submit or in any way make references to the consequences that flow from those statuses and my friends have talked about that
• The point I would like to pick up with is the interesting concept that Board policy states that registration for labour contractors is not mandatory but is allowed and you can see in my submission that the Board policy is a positive thing as it is allowing the independent labour contractors to do something, in a sense, that they want to do
• Mr. Sayre pointed out that in commerce an unfortunate consequence is that they are somehow forced to do something
• The point I wish to point out there is the different mind set that we have – we have Board policy allowing coverage if desired
• Quite often the Board applies a very complicated, discretionary piece of legislation in the stream of commerce where there are individual and very legitimate interests at stake and it is incumbent upon workers and employers to endeavour to make this scheme work
• It is not always the Board’s interpretation or restrictive application to legislation but rather it is an openness to give credibility to the desire that somehow results in unfortunate consequences
• Sometimes it is not a matter that there be a problem with the system but an application of a complicated discretionary system on a very complex industrial and commercial society

Aboriginal issue

• The coverage before universal coverage that was carried on by the native people on reserves was a troubling issue
• This Board took positive action in trying to engage the native people in discussion concerning coverage of work on native reserves and the Board was unsuccessful, therefore the problem was not resolved
• Inevitably catastrophic situations occurred as a result
• I.e. Mrs. Isaac’s husband was killed in a logging operation and unfortunately the native band had not registered as a logging operation on the land so she was left a widow with young children
• The judicial review that flowed from the Board’s refusal to accept that claim was not supported by the Indian band of which she was a part of
• Those at the Board welcomed the judicial review because it was a way of dealing with this issue
• The result was a strong interpretation of Board policy
• The supreme court said the Board was right and when the Court of Appeal looked at it the Board was criticized and Mrs. Isaac’s claim was accepted
• It now being the case that the courts have said that these claims are acceptable my suggestion is that it might be an issue where if it isn’t broken don’t fix it

Fishing industry

• I agree with Mr. Steeves that it is a complex issue
• When I first joined the Board I joined as a litigator and he found that his first responsibility was dealing with a particularly disastrous herring fishing season and so government wanted to cover the fishing industry
• On his way home from work he heard on the radio that the government would cover the fishing industry and the wording was that circumstances that had prevented coverage in the past had now been overcome
• He thought to himself, as the person writing this legislation, he wish he knew how they had been overcome
• I think those issues are still very complicated issues

Stress

• Shouldn’t be looked at as the Board refusing to do something but an issue of a condition and the eligibility for compensation under legislation – arising out of the course of employment
• I think Mr. Sayre made the point that the Board does a good job on broken legs and broken fingers because you can see the injury, backs are more difficult and stress is even more difficult
• If I may look at the stress issue as an issue of arising out of the course of employment rather than the Board steadfastly refusing to accept something that the act clearly states they should deal with or not deal with

Section 10 and 11 – Disclosure and Protecting the System

Historic compromise or tradeoff

• It was proposed by Mr. Sayre, in particular, and by Mr. Steeves to a lesser extent to open up access to the courts for lawsuits at the initiative of injured workers – in other words to broaden or remove the bar
• To pick up the words of Mr. Justice Sloan in the 1952 royal commission, in my submission, shows a lack of appreciation of the historic compromise and what was, in effect, achieved by workers
• I will read from the Tysoe Commission, which quotes from the Sloan Commission and it has the Commission of Inquiry cover page
• On page 17, Mr. Justice Tysoe picked up the same comment in 1966 that Mr. Sloan picked up in 1952 and in my submission it is the same situation that is before the current commission
• Start with the 2^nd paragraph on page 17
• Discusses the workers entitlement to compensation
• The next paragraph shows that Mr. Justice Tysoe agrees with the 20% to 30% based on his experience acting for employers before there was worker’s compensation law and then acknowledges that employers and workers are better off under the act then they were under common law
• Mr. Sayre and Mr. Steeves have talked about what workers have not received
• What we haven’t talked about are all the other benefits and positive attributes that this act, the historic compromise, provides
• I provided excerpts from a case
• Mr. Bates, when he talked about section 10 and 11, talked about the Newfoundland case, the Piercy and the General Bakeries case and that was a case under the charter, Section 15 about taking away the right to sue being contrary to the charter
• Supreme Court judge in Newfoundland accepted the argument and found it to be discriminatory
• There was no right to appeal so the Newfoundland government sent a referral to the Newfoundland court of appeal and that is the extract that I have provided you
• This is the extract that I provided
• It was appealed to the Supreme Court of Canada and it dismissed the appeal
• Page 509 describes the historic compromise by the court of appeals judge
• Page 510 compares what is received just from a compensation view point under the act to whether the judge felt that it was superior or not to the common law
• In most times it found that the act was superior with the main difference being on non-economic loss
• Look at page 512 - 513 which says that you have to look at a global approach in comparing the benefits that are provided and when you do read it you are going to see a similar recital of the kind of benefits that flow from a worker’s compensation system such as we have in BC that flow to workers cover by that
• When you look at disadvantages on 513 it is acknowledged that there would be a group that would fair better under common law but think about what Justice Sloan said – the vast majority of workers have a superior right under compensation than they would under tort law

Section 10 - bar of suit

• Worker versus own employer
• Mr. Sayre enunciated that in certain specified circumstances such as gross negligence or recklessness the worker should actually be able to sue their own employer and Mr. Steeves felt that if there really is going to be a maximum continued after the commission is finished then why not allow a suit above that maximum by the worker against their own employer
• Both of those kind of activities will go to the root of what the historic compromise is all about
• If you can sue the employer under any circumstances what is the value of having a system where the employer is funding a no fault system
• They are going to fund the system at the full cost of assessments and they are going to be subject to the exact same cost, delays, anxieties, etc. in the courts
• There is no compromise and the worker takes no risk
• Under that scenario I think the employers would also say that they would take their chance in court
• All employers would probably end up better in that situation but the employer community isn’t advocating that they are advocating the concept of the historic compromise
• When we get to the maximum Justice Sloan made a comment about there being compromises in the system and the compromise is that you don’t get 100% - there is a waiting period or there is a reduction in the loss
• What we are trying to do is ensure that the vast majority of people get that measure of security
• So when we talk about a waiting period or maximum – and if the commissioners determine that there should be a waiting period or a maximum - those are encompassed within the system
• It makes no sense to allow suit within that system for those things not covered
• That was part of the compromise that was looked at
• Mr. Bates was asked if you excluded stress altogether should that be allowed to have suit and he said yes
• I agree because that is excluded from the act altogether, therefore, since it was not covered under the act, a worker who is claiming that the stress was caused by his or her employer would have the right to sue
• When talking about stress on occupational disease day I will come back to that because I think that supports why it should not be part of the WCB system

Second bar is worker versus other employers covered by the act

• Mr. Sayre would allow such suit and my response is that it goes to the root of the system yet again
• It is a modified collective liability system - all employers pay into the accident fund
• The fund is being drawn on when a worker gets injured and his claim is contributed to by a variety of employers, not necessarily his or her own employer - in fact rarely would it be only his or her own employer such as a deposit account or the federal government
• All employers that contribute to the fund expect the same compromise or benefit back - protection from suit
• Let’s take an example of a car accident
• There are two workers who are both in work and both their employers are covered under the act
• If we all accept that the worker can’t sue their own employer because of the bar there could still be a cross suit now
• Does it really make sense that you can’t sue your own employer but you can sue another employer and both employers are actually being sued by cross suit as opposed to their own employee
• Being sued is going against what the historic compromise was supposed to prevent

3^rd bar is worker against other workers covered under the act be it co-workers at their work place or workers covered through other employers

• This one is not obvious whether it should be covered under the historic compromise
• We have to look at the fact that if we left other workers to be sued then we are dealing with ½ a bar so what would happen is that we would be making the worker solely responsible for his or her share
• The way I read section 10 right now is that if you have an electable employer not covered under the act that can be sued your own employer may end up getting involved but it is no longer joint and several
• It is a clear exception to the joint and several liability that is set out in the act
• It is eroding and bypassing yet another principle that carries the liability of the employer on the worker
• The worker is being held responsible, the employer is not
• I am not sure that is the best system that we want in BC – to hold other workers personally liable for these types of situations
• I don’t think the historic compromise intended to cover that
• I think it becomes more of a public interest policy issue

• Next group covered by the bars are two fold – medical malpractice
• Employer community agrees that there is something wrong with protecting the doctor who is providing services of a medical nature to a worker and is negligent or a malpractice occurs but they are protected from suit simply because that person happens to be an employer
• The employer community would agree that that should be opened up
• There is going to be a difference again and we have to weigh that difference
• What happens if you are going to VGH and the doctor there is accused of malpractice – that probably is a case of falls closer under the bar and it is probably going to be found to be protected under the bar
• There is a court case dealing with that kind of matter where a worker died on the operating table as a result of the anesthesiologist’s actions
• The anesthesiologist was a worker protected under VGH, which was protected in the law suit
• If you get to a doctor that is clearly an employee, i.e. hospital, then they are protected
• When you get to a doctor that is an employer then the employer community does agree that that is a bar that doesn’t seem to make sense

• Motor vehicle accidents is the last bar I want to comment on
• The issue was raised about certain jurisdictions, I believe it was New Brunswick that was identified, that actually removed the bar from motor vehicle accidents
• I think that Mr. Bates said the only people that get benefit from the bar is the insurance companies as there is no benefit to employers and it is probably a detriment to workers
• That makes sense but it is problematic because we are involving an employer, potentially, that is covered under the act
• It comes back to that was what the historic compromise was about – that is why the payments were being made
• Just because it is one type of accident – a motor vehicle accident – doesn’t take away the fact that they were an employer and it was their worker that was involved in the accident arising out of employment
• To just remove the bar just because there is another entity there – an insurance company – doesn’t make much sense from the employers’ view point
• If we are trying to figure out a better way of apportioning where the costs are being spent between the worker’s compensation system and the ICBC system there must be a different way to do that than opening up a bar and letting them be sued
• There may be a way that the costs will have to be worked out or just let WCB and ICBC fight it out

Q: You are identifying the medical malpractice issue as a possible exception subject to the doctor being employed by a specific employer and it was the Smith case that you were referring to.

A: The Smith case, that is correct, but again it was not a doctor.

Q: So that is an exception to the tort bar that, as you said, is subject to the limitations that you have set out. Your clients are not particularly against that?

A: I am not sure that it even has to be an exception. I have never quite understood, and there are cases on it, that last sentence in section 10.1. I have always found that quite confusing. That says this provision only applies when the action or the conduct of the employer, servant, agent - and a problematic word - or the worker that caused the breach of duty arose out of and in the course of employment within the scope of this part. I think that you have the doctor on that because it is kind of difficult to say that it may have been arising out of the course of employment just because he pays assessments. Even if it is within the employment they see medical malpractice as something very different. It is objectionable for a worker to be going to receive proper medical care and ends up getting malpractice and they are worse off, whatever that means, than when they started but they have no avenue of recourse against that doctor.

Q: Going one step back, this whole issue of medical malpractice being a bar or not stems from the universal coverage amendments in 1994. Do you have any thoughts about the idea generally and how it relates back to the tort compromise in terms of fulfilling a need. Why would you compulsorily require high-income earners and/or professionals, who at least classically have not been looked upon as workers in the usual sense of the word, into the scheme? They may, indeed, have their own coverage and don’t want to be part of the scheme. I am thinking of lawyers, architects, airline pilots…

A: I was retained by the Board as one of a variety of consultants when Bill 63 came out. One of our mandates was to actually look at exemptions and who should be exempt. One of the issues we talked about was these high wage earners. We talked about hockey players and does Pavel Bure actually care about worker’s compensation at $56,000 when he actually earns $12 million. If he gets injured does that mean he has to take his $56,000? We never got around to it but I don’t think any of us disagreed with the concept. You are going to have a tough time when you start putting in an income barrier and saying where do we stop the line if the intent is that employees and workers are covered under the scheme just because some earn more and some earn less? That was a difficult line to draw. With sports we drew it because of the bodily contact and there is a whole variety of different reasons. We really didn’t discuss it and I really never put my mind to it. I think the answer when we talk about what the maximum is going to be is that these are the people that have access to other funds. They have other ways of compensating themselves to a fuller level than what the public interest is in trying to cover the majority of people through the worker’s compensation system. It sounds cold as I am covered by it too even though I am a partner who is not incorporated so I don’t have to be covered by WCB. That is a reality though that even if I was covered by it I do have the means to provide extra coverage for myself. Besides that there is no consideration of whether doctors or architects or judges should be out?

Section 10(8) – transfer of costs between employers

• It is our way of suing each other
• It has value when you have an experience rating system
• If you don’t have an experience rating system the current language is probably not too bad in that it only allows you to transfer between subclasses
• Without experience rating that is all that is relevant because the subclass is what determines the assessment rate
• But we currently have experience rating and the employer community is certainly going to be advocating maintenance of experience rating and then costs become important
• It is not just cost transfer from the connotation of why are we spending money in terms of time and delay and resources on cost transfer
• Cost is important to an employer
• To be able to transfer a significant amount of costs that would affect the assessment rate because of experience rating to another employer who is at fault can have a substantial impact
• E.g. there are two trucking firms with two drivers and there is an accident
• One is seriously at fault while the other is seriously injured
• Under the current system the cost cannot be transferred because they are in the same subclass
• The employer of the worker that caused the accident has no additional cost
• The employer of the worker who was the victim absorbs the whole cost
• There is something wrong with that system that doesn’t allow the employer to say but that wasn’t our fault and why are we absorbing the cost which has a significant impact vis a vis our competitor
• It is not a problem if it was an accident between a taxi and truck because they are different subclasses
• There is no reason with what ever the experience rating system ends up being that we have that restriction of subclass

The second aspect of 10(8) that is a cause for concern is the way the words "serious breach of duty of care by an employer" are interpreted in BC

• It has to be a serious breach of duty by senior management, not by the worker
• If a worker has a serious breach of duty but the management didn’t then you cannot transfer the cost, which doesn’t make a lot of sense from the employer community view point
• It is far too restrictive
• Take the example of a taxi and a truck speeding, which results in an accident and injures someone else
• Because senior management can show that they told the drivers not to speed and that there is no serious breach of duty by senior management those costs cannot be transferred
• That doesn’t seem to make a lot of sense with respect to the purpose of what that section is there for

Q: I have a question about the subclass requirement that is a bar to transferring costs between employers in the same class or subclass. It is the class as a whole that is assessed in any event so is it just experience rating assessment?

A: It is the subclass where the assessment is important not the class but it is just basically for experience rating assessment.

Q: Otherwise they are paying out of the same pot anyway if they are in the same class.

A: That is right. That is why this language would make more sense if it was put in before there was an experience rating assessment system and wasn’t contemplated from the view point of experience rating and how does that work between employers.

Disclosure

• Concerns the employer community has with requests being made to limit disclosure to employers in valid appeals or valid cases where employers are involved
• The primary focus is to restrict it to relevant documents and if I understand Mr. Sayre he wants to restrict it altogether

• Let’s deal with the relevancy issue
• There are a variety of concerns with relevancy and I think that the commissioners did a good job in decision 4.10 in trying to start the discussion about why that becomes problematic
• The first issue is who even determines relevancy?
• Someone in the Board is going to make a decision of relevancy
• How do you allow objections to be raised?
• I will wait for Mr. Steeves to give his presentation before I can do much comment on it. He says that there should be a right of review if that is a valid concern and so the question I am going to ask is how do you have that right of review?
• Do you give an employer and the worker a list of all the documents that were found not to be relevant or is it only the employer anyway?
• Do you just say come look yourself or how do you do that?
• Is it the employer who is going to then get access to the whole thing or do they have to get counseled?
• If you are going to move to a system where there is the right to review or the right to object then you have to build in that natural justice side and the concerns that are going to flow from that
• Mr. Steeves raised the fact that there may be cases where relevant documents are used to which the employer was not given disclosure and that could mean that the Board screwed up
• That doesn’t really please the employer because if the Board screwed up the employer didn’t know that and to just say that it was a matter of training doesn’t answer the employers’ concern that they didn’t get relevant documentation
• The other aspect that Mr. Steeves mentioned is that even if it is what normally happens is that you get an adjournment
• What normally happened in these cases, from my experience, was that a worker pulled out a document from the file so they can show it to be relevant and the employer never got it
• In those situations where now that we know it is there we can get an adjournment but what about the flip side?
• What about the documents that the employer would have used if they thought they were relevant and that was detrimental to the worker’s case?
• We probably won’t see that in that manner and again you come back to the question of how do we know that that is there?
• How do we raise whether we think it is relevant and get our objections on that being denied to us?
• I was involved in a judicial review from section 39 (1E) historical case called the Brand case that was fought by David Brand and several others in the Pulp Paper and Woodworkers Canada Local 8
• It was against the WCB and I was acting for what now is the employers’ forum but the employers’ health and safety association got intervenor’s status
• The issue was privacy
• Madame Justice Newberry said "4^th, there is a balancing question of whether the injury that would inure to the relationship by virtue of the disclosure is greater than the benefit thereby obtained. In fact, this is the reinstatement of the larger issue that lies at the heart of this case – whether a worker’s interest in the confidentiality of his own medical information is outweighed by the employer’s interest in having full disclosure. Albeit in connection with an appeal that is ‘merely financial’ and in the public interest in ensuring that the Board operates in accordance with the rules of natural justice Ms. Lee has not cited one case in which an individual’s interest in the privacy of his medical records has been held to outweigh the dictates of natural justice when a direct conflict has occurred. In my view that is because [court case named] the public interest in the proper administration of justice outweighs in importance any public interest that might be protected by upholding the petitioner’s claims. This is not to say that they do not have a legitimate interest in or expectation of privacy but that interest and expectation must, in these circumstances, give way to the larger public interest. It follows, in my view, that the policy considerations in favour of privilege must give way to those in favour of natural justice and the disclosure of the petitioner’s full files for purposes of a section 39 appeal must be upheld."
• It is a natural justice focus when we compare privacy and they have to be balanced and the employer community is not coming and saying don’t balance
• But natural justice, so the courts have said, tips the scale of those bounds
• This case was decided about a month before freedom of information was enacted
• Freedom of Information, Section 3.2, has the exception – it says that this act does not limit the information available by law to a party to a proceedings
• I believe there is a ruling by the commissioner that once there is a valid appeal freedom of information doesn’t apply period

Section 95 (1.1)

• Two points were explored with Ms. McDonald and I would just like to raise them again and raise potential solutions
• The first is the concern that was raised arising from the Macmillan Bloedel arbitration case where they went to an outside third party physician with the documentation that was held in that case to be contrary to section 95 (1.1) and the doctor’s opinion was declared inadmissible based on the documentation that had been provided to him
• Ms. McDonald felt that was wrong and that was never the intent of that statute and the employer community does request that the commissioners consider recommending a revision to section 95 (1.1) to make that clear
• The distinction of an in-house physician versus someone outside the organization is not a valid one to prevent disclosure when the employer is seeking advice on that information
• Ms. McDonald felt that it was probably implicit that the professional relationship would cover the privacy and the employer community doesn’t object to that implicit understanding being explicit
• There should not be tertiary and further disclosure through that relationship
• The protection of privacy should extend to that relationship but not beyond
• The other troubling point of the current 95 (1.1) – and again the employer community is not challenging the concept – is that we have a work related problem that extends beyond worker’s compensation and we are using the same document that starts in a worker’s compensation arena and moves out of it
• All of a sudden we find that something went wrong and section 95 (1.1) raises its head and stops the whole thing
• The example I used with Ms. McDonald was an employee away 9 months on a WCB claim and WCB determines that the worker can return to work and they cut him off wage loss
• The worker appeals, the employer and the worker get disclosure
• The worker applies for sick leave and the employer has the material, relying on the WCB decision, which is a public document but also disclosure that supports it and denies sick leave
• Up to that point there has been nothing wrong but now we get the grievance, the arbitration and we face 95 (1.1)
• We have to go through quite a convoluted process to get that documentation in
• We can but it doesn’t seem to make sense not to have that recognition that there are certain work related issues that flow right back to the work place – return to work, rehabilitation, the ability to do a certain job – the employee may say I can and the employer may say you can’t or vice versa
• The documentation that supports that one way or another is on the WCB file but all of a sudden the decision has been made and we can’t rely on the documentation
• The easy way around it is to subpoena the Board officer to come up with the documentation
• As Mr. Dorsey said, notwithstanding we had a lot of words that support the concept of privacy at the end of the day in the Fording Coal arbitration he ordered the documentation to be produced
• Instead of ordering it through the Board he subpoenaed the employer to subpoena itself to come up with the documentation
• There must be a more practical way to allow the documentation into a related, relevant proceeding and respect privacy

Q: You talk about disclosure of the file and clearly there are circumstances where the document does not require full disclosure. If you don’t need it why would you want it?

A: I agree and it depends on the case. The troubling point is how do I know? I have seen too many WCB files that have things tucked away where they shouldn’t have been or you may have thought it was irrelevant but I made something out of it. At a minimum the employer should know what we are not getting. There should be a safeguard that allows us to question why the information has been determined irrelevant even if it is in a private manner.

Q: Aren’t you facing there the identical situation in obtaining full medical records of plaintiff sexual assault cases where the accused gets disclosure of medical records. Somebody has to be the arbiter of whether it is relevant or not because if the accused or defense can look at it then the confidentiality has already been breached. In the court system we have the advantage of legally trained judges to rule on relevance which could be a problem in terms of the Board in terms of who is going to do it. Once you see it the confidentiality is gone.

A: I don’t have any experience in this area so I have a question and a comment.

The question would be if the judge makes a determination of relevancy is that open to challenge? If that is open to challenge then somebody had to know what the decision was and what documents were relevant or not.

Q: You can appeal to the Court of the Appeal and they decide whether or not the parties will get to see them or not

A: In other words it is just a blind appeal and you disagree without being able to put in any reasons. It is not your fault that you couldn’t put in any reasons but nobody would show you what you can’t see. So you get another set of judges to look at it and see if they agree or not.

Q: Your submissions are based on, these are the issues in the trial, these are the kinds of documents that would be relevant and here’s why. The court then looks at the documents and decides, in the context of what the issues are, whether it is necessary to have disclosure and breach the confidentiality.

A: That may be the process you look at. It looks cumbersome but if that is what the WCB process goes through at least there is a safeguard. I think if you read decision 4.10 they were trying to avoid what they were finding to be a very cumbersome situation on relevancy. The other comment I was going to make and again I don’t have any understanding or knowledge of criminal law other than it is a different public interest. When we talk about the criminal, that is why you have the reasonable doubt standard I assume, and whether or not that makes a difference when your in the criminal I can’t answer or not answer as opposed to the worker’s compensation field.

Q: The same principle applies though in a civil action. If a person sues for damages for sexual assault the defense tries to get their previous psychiatric records. You’ve got to establish relevancy before you get to seem them and the court adjudicates on relevancy.

A: I think that answers my comment.

Protecting the system

• Section 54 reporting – employer’s obligation to report within 3 days
• We heard the concern from the Board that 50% of the files are received within 10 days and the other 50% beyond that
• We heard several requests that there should be an administrative penalty
• Mr. Steeves says that there should be an automatic penalty of $250 per day
• The problem I have with that is, Mr. Massing even intonated that the first thing you have to look at is whether the 3 days appropriate considering so many people are missing it
• One of the things may be that the time frame may not be appropriate so that would be a consideration particularly if you are going to move towards a penalty system
• I have not done a review of other jurisdictions but I think that he said that Manitoba and Saskatchewan have 5 days
• Whenever I see 5 days I automatically go to 7 because that isn’t including the weekend
• The automatic $250 bothers me because you could have an employer with an excellent record of timeliness and the claims specialist may have been away on vacation so something gets screwed up
• To have an automatic penalty without any review doesn’t seem to make a lot of sense and is serving the wrong purpose
• That doesn’t necessarily mean that there shouldn’t be a little more of a time limit that the Board can have and I thought Mr. Stoney’s question to Mr. Buchhorn was an interesting one – are they going to apply a time limit to themselves first
• If understood his question it was your 31 days average and we’ll have to say that that would be most interesting
• There has to be a certain amount of reasonableness and fairness if we are going to go to an automatic penalty system for failing to file a form within a set time frame

Suppression of claims and fraud

• Section 13 is suppression of claims by employers
• My recollection is that everybody has said that this is all anecdotal – except for Mr. Fattedad who said that he had one first hand experience - so we are getting second and third hand stories
• We do have Mr. Massing’s numbers of complaints for suppression under section 13
• There were 19 in 1997
• 24 in 1996
• 13 in 1995
• He said most cases didn’t go anywhere because it is dissuading to report and the reporting function was seen so it didn’t go anywhere else
• I am not going to say that there aren’t employers who would try to suppress claims but then Mr. Sayre and Mr. Steeves can’t say that there isn’t a small number of employees who are trying to defraud the system
• That is why we are suggesting a fraud system or a hotline that would include workers defrauding the system, employers suppressing claims and any improper conduct including that of board staff and service providers
• Mr. Fattedad agreed but Mr. Buchhorn didn’t support it based on the ICBC experience and we heard that they are looking at some kind of computer program
• The last document provided to you by me was information from ICBC on the fraud system as requested by Mr. Buchhorn
• It shows 1994 data and covers September 1992 through to August 1994
• It was a breakdown of the number of calls they got
• In the claims fraud they had 3, 608 and they showed a total savings from all of these calls of $1.6 million
• On the next page they tried to cost per call and they did it two ways with all calls being $264 cost savings per call and if you just take the fraud and exaggeration cases you are looking at $439 per call
• It looks like it has some value
• If ICBC found this to be so unworkable they certainly continued the process
• The last page shows the statistics on the number of calls through to the end of 1997 – they don’t show the dollar savings anymore but we do know the tip line did continue all the way through to 1997
• The other element to the fraud line or hot line that hasn’t been talked about is the deterrence factor
• It would be hard to believe that there is no deterrence factor so any deterrence factor is an additional hidden savings from what we will see from any hard savings that we can justify
• Employer community recommends that we look at that in a more timely manner
• This is another area where the Board says that they have a policy investigation on this point but it seems to have been out there for a while

Section 47.2

• This is the section where if an employer is not registered and they suffer a injury in that period of time the act mandates that the penalty be in the full capitalized value
• The default could be excused although I haven’t heard of any cases but Mr. Dugas says that it is done for small business
• The problem is that it is an unfair, arbitrary system
• Take 2 employers that have the same size business and who are in the same industry
• One doesn’t register for 2 years and has the good fortune of no injury but they get caught so their penalty is the back assessments with a penalty charge, which I think is 5%
• Another employer didn’t file for 2 weeks and gets a serious injury
• They pay the assessments with a penalty and they also pay the capitalized value mandate unless it is excused
• That seems to be a distinction that is not based on any reasonable fact
• It is based on an arbitrary fact of severity of injury
• The employer community thinks that there needs to be an element in the act that motivates compliance
• Employers don’t want to pay for other employers who aren’t registered
• It should be a fair system so we have proposed that it should be a multiple of the outstanding assessments
• So if the Board believes that it wasn’t done with blame worthiness or willfulness of not registering 3 or 4 times may be appropriate
• It is then based on payroll and everybody has a proportional amount
• The Board should have the ability to increase that amount if they do believe that it was intentional and blame worthy
• The proposal we throw out is that it may be up to 10 times
• At least then there is a factor that is equivalent between all employers

Prosecutions

• My partner, Norm Treerise, is involved in almost every prosecution that employers are being involved in right now
• Under section 71.8 of the act an officer of the Board has the right to investigate any injury or accident and it becomes an offense for any person to withhold any information or obstruct
• The concern he raises is how that runs into the charter and is the Board dealing with that properly
• He says that an officer goes to a worker and requests an interview and the concern is that the information provided by the worker, when it goes to Crown, is being used to determine whether or not the Board should prosecute
• If the worker says that they don’t want to do that they can be held to obstruct
• So if the worker doesn’t want to incriminate himself he is obstructing and if they don’t want to obstruct and they provide information they may find that it leads to a prosecution charge
• We are looking for safeguards
• My partner has said that there have been cases where the worker has said to the officer, ‘can anything happen from this, will there be a prosecution?’ and the answer is that I don’t make that decision I take the information and pass it on
• I think that the Board has a wider responsibility to advise of the consequences
• The public policy issue that we raise is should the material be used by the Board or Crown to be able to prosecute against that person giving the information?
• We believe not, we believe that the public policy, the higher interest is to be able to get full information to be able to adequately investigate the safety concern, identify the cause, remedy the situation and prevent it happening again
• That should be the primary focus of what this investigation should be

Q: With respect to Mr. Treerise’s concern are we talking about prosecuting an employer for breaches of the regulations and using the statement by the worker?

A: He is talking about the prosecutions going against the supervisors and managers as well as the employer. So they are going to be taking these statements from the supervisors and the managers and using that information in reaching determination when it goes to Crown of whether to prosecute those supervisors and managers.

Q: And his understanding is that those statements, although compelled by statute, are admissible in quasi-criminal proceedings?

A: That is his understanding. At a minimum safeguard he would like that being advised up front and the right to council. The Board is allowing council now but it has to be asked for as opposed to being told. There is significant consequences that these investigations could lead to that we should start anticipating based on what the Board is starting to do with prosecutions.

Q: One would think that the charter would impact on that in terms of the right to council and so on if it was going to be used against them.

A: Thank you

Mr. Steeves: I think that if the Board is going to make submissions through Mr. Bates that is fine but I think that it should go in order so that we have a chance to make any response that we would like to make.

Judge Gill: You would like him to speak before the rebuttal?

Mr. Steeves: Yes

Judge Gill: Alright, so amended.

• I said a lot yesterday about restoration of partial rights of access to the courts I will leave that to the end

Privacy

• Starts at page 15 of the written material that I have given you
• I set out a number of observations and principles that we would urge the commission to accept and agree with and carry forward into your recommendations
• The first is that we recognize that the Board has to have a pretty wide latitude in terms of what kind of information it gathers
• Compensation claims can be very complex and particularly with some types of conditions there can be legitimate issues of causation that involve determination of things that have happened in the worker’s personal life or in the worker’s past, sometimes very private things
• It is unrealistic to think that you can protect a worker’s privacy by restricting what the Board is allowed to ask about or what kind of documents the Board is allowed to get except with a very broad brush
• I was pleased to hear what Ms. McDonald said about irrelevant information, which is sent from a doctor to the Board and the fact that they just send it back rather than keeping it as a permanent part of the claim file when they would never have asked for that material before
• That may be the best that we can hope for – just a sensitive, common sense approach by the Board itself saying that we are only going to get the information we need to have
• We are going to recognize that whenever we ask for personal information from a worker we are at least to some extent violating that worker’s privacy or invading that worker’s privacy and we are only going to do that when there is a reason for it
• The second principle focuses on the importance in the adjudication process of having an early determination of what the facts actually are so that the Board can make the right decision as early as possible in the claim
• In our submission that requires that the Board acknowledges that a worker has a right to immediate disclosure from the time that the claim is filed
• I think that the policy now recognizes that
• Secondly the worker has the right to ongoing disclosure and I don’t think that the policy recognizes that unless the worker has a fax machine and requests disclosure every week or so
• There is no, as I understand it, no mechanism by which the Board can simply say that we are going to routinely forward copies of either all material or all material of certain types to the worker as and when we receive them so that the workers are aware as we are of the progress of the claim
• It is our view that it ought to be available to a worker at least upon request and, in fact, the Board’s decision making process would benefit if that was available
• The earlier a dispute over the facts or a difference over the facts can be identified the better the chance that it can be quickly cleared up - when people’s recollections are clear and the people that have given information on behalf of various parties including the employer haven’t moved on to some other job
• It is much easier to do that 2 or 3 weeks or even a month after the claim starts versus 6 months or a year after the claim starts when the people that are available haven’t got a clue what they were really told and all they can do is look at the document and say well if I said it then it must have been what happened
• We ask that the present mechanisms for disclosure provide for an ongoing disclosure process
• Second issue regarding disclosure and disclosure to workers is that there seems to be a bit of a word game being played by the Board
• If the worker asks for all their information that the Board has then they will receive their claim file plus any extra information at the Board but an ordinary course of business disclosure does not reveal all information
• We think that the name game is perverse since it is obvious that worker who asks for disclosure wants to see what information the Board has about them
• If the Board even feels the need to ask whether the worker really wants it all or not they should at least ask the worker what they want – do you just want to see the claim file or everything that we have got?
• I would bet that 95 times out of 100 that the worker will want everything
• 4^th point is that workers have the right to comment on information that has been filed if they disagree with it and to make sure that someone is aware in the future that the worker has disagreed with it
• I am not sure that the physical mechanisms that have been used are completely appropriate and we would like the commission to confirm that
• My 5^th point is one that I have given an indication of before and it is obviously contentious as it goes beyond issues of disclosure and privacy
• It is our position that the overall system will benefit if the worker’s status as a legal party to an individual claim is eliminated
• We realize that would mean an elimination of the immediate financial consequences to the employer that flow from a claim having been filed
• If that is done the employer will not have the rights of natural justice to see every documents in the claim file
• They won’t have the right to file an appeal or oppose one, except as a witness
• There is no reason why they should receive disclosure with one exception and that is the need to know disclosure that was described by Ms. McDonald
• One example that comes to mind is that when the Board wants to make an inquiry about whether a worker can return to work because they still have some restrictions on what they can do then the employer needs to know what those restrictions are
• We certainly can see that any information that can be described in that sense, something that an employer needs to know or third party needs to know in order to do what’s necessary in order to administer the claim can be disclosed as a part of the claims process
• There is a provision, however, if you don’t accept our position then there is one further middle ground that can protect a worker’s privacy interest
• Section 11 of the environmental management act gives the environmental appeal board the power to allow someone who is not a party to the initial appeal the right to be a party or the right to be a limited participant
• As a participant that person would not have the right to access confidential documents except in a class where I think the Board would have the power to say that you can have access to certain types of documents that you will need to see because of your interest in the case but you don’t have the right to natural justice so you don’t have the right to walk in and say that you want to see everything
• That is the model that exists in current BC legislation that does attempt to strike a balance between confidentiality of information submitted by the most interested parties and the need for certain other non-parties to participate in a process in order to protect what they see as their legitimate interest
• I am not convinced that there are very many individual claims appeals which will raise such an issue of general importance to an employer as would be the case in some environmental appeals where an environmental group, a homeowner’s group or someone else might be vitally interested in the outcome of that appeal
• Another alternative, which I don’t think is a particularly satisfactory one, but it is better than allowing employers to have copies of anything on the claim files whenever an appeal is filed is the Ontario model
• The Ontario model calls the file when an appeal is filed and selects the documents that they consider to be relevant with respect to the issue that is under appeal and they give only those documents to the employer
• The way that works in Ontario is that the tribunal council’s office is responsible for that process and those are also the documents that are put before the tribunal
• Unlike the case in BC where our appeal tribunals can see the entire file and read through it and sometimes see something that may suggest the need for further investigation or an inquiry the tribunal in Ontario sees a much more restricted selection of the documents in the file
• It struck me that that would inhibit the ability of the tribunal to engage in appropriate inquiry in cases where both parties weren’t fully represented and where the issues hadn’t been fully developed

Q: If somebody suspects that there is a relevant document that has inadvertently or otherwise not been disclosed by the tribunal council’s office is there some review process?

A: Like Mr. Newman in The Verdict I only have the one client for Ontario Worker’s Compensation and in that case the employer was not involved and we did not dispute it. We were asked if there were any additions that we thought should be added to the docket and we said no. There were really no issues of confidentiality in that case and in fact we were acting for the estate of a worker who had died after the BC board had finished with his claim. It was not a situation that really poses the kind of problem that I think has come up here. I was interested in the questions that you posed to Mr. Winter regarding sexual assault. At least twice there have been laws that have been enacted, struck down and then reenacted to try and deal with that situation. That is one of the reasons why I don’t think that a system that tries to protect workers’ privacy concerns by a standard of relevance is a very good answer. I do think it is better than what we’ve got now which is to ignore those privacy concerns.

E-file

• The observation was made that under e-file documents can almost not be removed from the computer once they are scanned in and all that can be done is that the link between the document and the claim file can be removed or deactivated in some way so that when the claim file is called up that document is not identified as part of it
• But the file somehow remains as part of the hard drive that contains all these documents and it would be possible later for somebody with access to the system who wanted to know of the existence of that document to do a search and find it
• I don’t know if that is any more than a theoretical concern
• It sounds as if it is not very likely for a person to get unproper access to it that way
• That response was given after posing the question about what could be done if something was irrelevant and prejudicial - and was ruled that way – and was already scanned into the computer and the response was that all that could be done was to de-link it from the document
• That may be a negative influence of e-file on the rights of privacy
• A more real concern is the fact that the Board is using more and more third party providers and we are not against that because that may give some workers more of a range of choice
• It does create concerns about the protection of privacy because some of those providers will need to be given information from the file that will be confidential
• My understanding is that the Board has a deal with Kinko’s to copy the files and although they have been told about the confidentiality of the claims we are wondering how that is going to be done

• Some of the things that I am recommending on behalf of injured workers will also benefit employers not only in terms of equity of the system but also in terms of the cost of the system
• According to the figures we were given employers received, in 1997, 7500 file disclosures and if that doesn’t need to happen anymore that is a substantial savings in the cost of duplicating and sending out copies of files and the delays and other administrative processes

GS: You talked about the need to know information described by Ms. McDonald – can you describe what that is?

A: I think the example she gave was that if the doctor said that the worker could return to work provided that he/she doesn’t lift more than 15 pounds then the adjudicator would have to ask the employer if that was the case thereby disclosing that information.

Fraud

• There are two big concerns that arise that do affect the vital interest of injured workers
• One case I had a couple of years ago suggests the potential danger of an unrestricted use of something like a hot tips line
• The Board, for no apparent reason that I ever learned of, thought that they should investigate an employee with a back injury to see whether or not they were really injured
• They sent an investigator to a small community where the worker was living and he followed the worker around over a 3-day period
• He took pictures of the worker walking around town, he took pictures outside the worker’s house and inside
• The investigating officer also went to the liquor store and showed a picture of a worker to the clerk in order to determine if he had been there
• He went to the community college where the worker was taking an upgrading course and introduced himself as an investigator for worker’s compensation and asked for any information they might be able to provide
• Hopefully that would not happen now but it does strike me that that could occur if the Board does have an active tip line where vindictive neighbours, etc. could call up
• People can call the Board now and give tips so I don’t think that you need a special tips line but when you invite it you are letting people know that there is a line people can call to get back at this person who is on compensation
• Our position is that when there is any indication that there may be fraud going on then the Board is entitled to look into it but not by active investigation as described above unless they have very real evidence of fraud that can only be flushed out by such an invasive investigation
• What they can do is take a look at the medical evidence in the file and try and determine if there is any reason why the case should have been cleared up a long time ago and if it does seem like a minor injury that should have cleared up in 3 weeks versus 3 months then perhaps the doctor should be called
• Of course, we are told that WCB is going to do that under case management anyway because they are going to take a more continuous hands on approach to the worker’s recovery and treatment
• It is hard to see how a tip line that invites accusation is going to add much to that process
• If there is a tip line there should be guidelines on what kind of tips will be followed up on and how that following up is done so that workers’ rights are not completely trampled on as I described to you

Q: What you are saying is that there should be better criteria generally for any of these investigations?

A: Yes hopefully the Board does not have enough idle field investigators to be routinely sending them out on three-day fishing expeditions as was done in that case.

Q: Are there jurisdictions that have some kind of recourse when these kinds of activities take place or what may be seen as improper activity?

A: Depending on what might have been done or what can be proven there might be some process that could be followed. The problem is that the Board’s officers are protected by a clause of the act that says they are not liable for anything done in the course of their employment and this investigator was told to go out and do these things. I am not sure just who we could have sued – the Board as an employer but I don’t think we could have sued the workers. The workers would have been covered by the Board litigation. The Board itself should just make sure that that doesn’t happen.

Second fraud issue I want to raise is that there are probably a range of situations – I am not aware of a whole body of evidence that talks about claims avoidance and I am not going to present you with any

• One situation that came up in the meetings of the advocacy group, which I chair, repeatedly and I was told this by the union that was involved with that work place in which the employer had set up an incentive system
• This is probably the more dangerous type of claims avoidance because it may be entirely bona fide and in good faith on the employer’s part
• The employer may think it is an appropriate way to encourage workers to be safe by saying that the whole department will get a bonus if there are no claims made within a certain period of time
• What impact does that have on the worker who gets injured considering he will not only lose his own bonus but all his co-workers will also lose their bonuses
• The peer pressure could be quite enormous if the bonus was at all meaningful
• It may well be that there is nothing sinister on the part of the employer in providing these bonuses but it seems to me that if we recognize that it is important for the Board to be told of injuries so that if they develop into something serious there is a proper record, investigation and treatment as well as dealing with experience rating assessment if we are going to have that anymore
• I recommend that the Act specifically says in section 13 or whatever it is that employers cannot provide a safety related benefit that is based on another worker’s job safety record

Section 10 – said a lot yesterday about it so I will try not to repeat

• Mr. Winter said a lot about the history of the Board of litigation and read us a lot from old reports about it
• Mostly he talked about what Ralph Dossler referred to during the break as the prehistoric compromise
• What the employers’ position amounts to is the assertion that the royal commission can’t or at least shouldn’t question a deal that was made 100 years in the darkest days of the common law when the courts were concerned, primarily, with protecting the captains of industry in order to encourage the industrial revolution
• They come up with doctrines like contributory negligence and the fellow servant role and so on in order to advance that goal
• This was at a time where an injured worker went without medical treatment because there was no medical insurance and the family might have been driven to beg because there was no welfare system
• Women and native people were not persons with respect to the voting system
• Are we really going to say that a deal that was made in that context is untouchable 100 years later in a totally different social, economic and legal context
• The employers’ position doesn’t seem to answer the unfair examples that have been posed in the past and will be posed again when we talk about why there should be recourse to the courts
• Take the example of a bus load of people going over a cliff and dozens of people are injured and killed
• One of them happens to be delivering documents in the course of their employment yet why should everyone else get full compensation for what they are suffering and that person only get the benefits payable under the worker’s compensation act?
• It makes no sense and there is no policy reason for that
• That has nothing to do with the historic compromise because we didn’t have buses driving around
• We didn’t have universal motor liability insurance when the historic compromise was created
• The physical context, the dangers that people face today are totally different than the dangers they faced then – work sites were different, everything was different
• Let’s re-examine the issues in terms of common sense and principle as opposed to simply saying this is what somebody said 100 years ago, 50 years ago or 25 years ago, therefore, we have to accept that and continue it into the next 25 years
• During the earlier party of the day I was talking to Leona Dowdy – she represented a group of widows – and she was telling me about a new member of her group who is a widow and her husband was a high income tradesman
• Her husband was earning over $100,000 a year and he was killed in an electrical accident
• It was found that the employer was at fault, so much at fault that the employer was convicted of criminal negligence and that is about as high a threshold test as you can imagine
• There were tragic consequences among the children who lost their father and they are still requiring medical treatment for their emotional difficulties
• A case like that, if it went to court, if there was no bar to litigation the only issue would be how many millions of dollars would that company have had to pay for its conduct – general damages, punitive damages, damages for medical treatment, etc.
• Where is the justice in saying to that family that you don’t get any benefits because 100 years ago in a totally different context a bunch of workers had to make the best deal they could to get medical treatment and the best deal they could to get something to put food on the table so they gave up the right to sue
• In fact, they didn’t give up the right to sue, the government said that if we are going to give you the right to compensation we are going to take away your right to sue

Q: The point you are making Mr. Sayre, is that what takes that outside of the historic compromise is that the conduct is so blatantly careless that it is not a question of negligence in a civil sense?

A: Apparently it was found to have gone beyond civil negligence. I haven’t examined the case so it might be better to use as a hypothetical example. The question is what kind of a compensation system should we have now and let’s recognize that this commission can recommend changes to that compromise and can recommend a better system of balancing the rights of injured workers with the rights and needs of the employers

Q: Is there some comparison in describing that conduct as going outside of the scope of the employment or something in the same way that would be comparable to the worker example we talked about this morning where conduct such as gross impairment takes it outside of the employment relationship?

A: That might be one way of looking at it in terms of explaining to employers why they should not be protected from litigation in that situation. Another comparison is that if you are going to go out and get drunk and then you have an accident the injured person will be taken care of by ICBC but they will go after you for every cent they pay out. You don’t have a bar from litigation, the liability protection that you have as a driver is dependent upon you acting responsibly. Why shouldn’t employers be held to that same standard? When they act irresponsibly and deliberately violate safety and health violations because it is cheaper to do so and they are found to act grossly negligent or criminally negligent why should the pool of employers in BC all have to pay for the cost of that injury? And why should the individual employer largely escapes from it? It makes no sense and, in fact, it defeats most of the social goals that would otherwise be advanced if the employer was answerable for the harm that they had caused. I am not sure why the employer community is in favour of that resolve if they are. It seems to me that it would be in their interest too to say that we represent thousands and thousands of responsible employers and if there are bad apples out there that are hurting people let them pay for it. As a motorist I don’t want other motorists who hit people while they are drunk and driving to get away scott free. I want to see them sued and among other things it keeps my premiums down.

Q: Could you adopt the ICBC model of a breach of condition by the insured and have the Board have a right of subrogation against those who are convicted of criminal negligence or egregious conduct as opposed to giving the right to sue in the courts? That would achieve what ICBC achieves with its going after the drunk driver for breach of policy.

A: I think that you should have both. What we are recommending is that in cases like that the victim or the worker’s survivors should have the right to decide whether to claim compensation or to claim in court. If they claim compensation then the Board should be subrogated and should have the right to do what ICBC does. If they choose to go directly to court then I think they should be entitled to do that as well. Then the Board should essentially stay out of it and certainly not defend the company. The company would have their own defense or it would be up to them to have their own defense.

Q: So much has changed in the work place since the historic compromise was set up. We have seen an increase in the number of partial, permanent disability awards for minor injuries. More and more work processes do not require physical labour so could you also make the argument that somehow that system has gotten out of wack and perhaps we are being too lenient with awards on that side of the coin?

A: I am not sure that how it relates to the issue of suing.

Q: It relates to the changing landscape that you referred to and the changing work environment that you referred to.

A: The worker should get full compensation for what they have lost. If they have lost earnings and earning capacity as a result of an injury to fingers or to the back, which isn’t considered a really major one but it does impair their earning capacity, it seems to be fair that they should get some compensation for that.

Q: What if, in many cases, it didn’t impair their earning capacity?

A: As the Board sees it they would not get any compensation. The theory as I understand it under Section 23.1 that sets out a right to functional pensions in certain cases is that even when there is no immediate effect of a physical impairment on a person’s immediate earnings we can assume that there has been some potential long-term effect. As a lawyer I can assume that I could carry on my profession despite severe disabilities. If I could return to work but I am unable to do other activities I should still get compensation even if I am still able to earn the same amount of money that I earned before. My ability to do a lot of other kinds of work has certainly been impaired in that situation. While it is a matter of degree I don’t know that the principle is a lot different. If the injury I suffered was minor and only affected my ability to lift heavy weights. As somebody who plays tennis as his or her main form of exercise if I suffer what might seem to be a minor injury to my arm it may be impossible to play tennis and I would feel like my enjoyment of life had been severely diminished. I would feel very resentful if I was told that I was not going to get a sent of compensation for that because I was in the course of my employment and the person who ran into me was also in the course of their employment. If it was someone else’s fault then surely there should be some compensation payable in those cases. All I am saying to you when I talk about the historic compromise is that the commission needs to have an open mind about the entire system. They cannot be locked into the notion from the beginning that you can’t disturb a deal that was made so long ago in such different circumstances. You may want to leave most of that deal in place but if you do I urge you to leave in place because it still makes sense and not because it was a deal that was made a long time ago.

I will leave my written submission with you on section 10 and 11

Q: My recollection of Justice Tysoe’s explanation for the rationale for both minimums and maximums was that the minimums are there to ensure that injured workers, irrespective of fault, receive compensation of no less than the subsistence level. And it also there to ensure that higher income earners that are injured receive something higher than that. What do you think about that?

A: The justice doesn’t discuss the dilemma that is posed by the situation that we are talking about. If we have a worker who has lost $100,000 worth of earnings and earning capacity and he only gets compensated for ½ of it I don’t see any social reason in saying that that should be the result.

Q: I think that what he was saying was that the objective of the scheme was not entire income replacement but rather some level of reasonable income replacement that would meet the objective of the act. The objective of the act is that injured workers, irrespective of fault and income would not become dependent on public funds for their subsistence.

A: I understand that that seems to be what he was indicating but I just don’t see how it follows from what the legislation does. If you don’t have a statutory cap the people who hire people that are entitled to $100,000 in income are going to have to pay more in assessments and those people are going to be fully protected for their loss of earnings just like everyone else. I don’t see how that would accomplish the act’s purposes any less. I don’t see how that partially replacing somebody’s income as opposed to fully replacing it advances the purposes of the act.

Q: Except that it costs more. The assessments go up.

A: Well sure but we are talking about employers who have already agreed to pay somebody more than the statutory maximum. Presumably the employer has decided that this person is worth a lot of money and why should their potential loss as a disabled person be any less if they get hurt?

Q: So how much can industry afford in terms of assessments and how much do you need to assess industry in order to meet the objective of the act? If that was a reason or rationale in the past then it is not something that you support today.

A: No I see no reason as it makes no sense to me.

Section 10 and 11 of the act is in section 4 of our written submission

After the 1^st paragraph Mr. Steeves made a comment:

• We think that there should be full and fair compensation for workers for time loss injuries, permanent disabilities and so on
• By full and fair we mean equivalent economic compensation, no less and no more than what they were earning pre-injury and that should be under the statute
• We differ from injured workers to this extent in that we are comfortable with that
• Injured workers view the court system with more favour than we do
• If there isn’t full and fair compensation then and only then do we look to the court system
• I also wanted to comment on the quote that Mr. Winter stated, which was actually a quote from Sloan
• Interesting quote because whether it was intended or not the clear implication was that because some workers are at fault all workers should get less on compensation
• If that is true, as a historical comment, I am not sure if that is intention of the system but if it is true it means that we don’t have a no fault system
• We need to be clear on what that kind of thought means
• If it means as I think it seems to mean that because more workers get some economic compensation under the tort then all workers have to take less money than when they are working then we say that is wrong and a problem in the historical compromise

Q: You say that it is not simply just a cost redistribution mechanism where the funds that would have been allocated to the not at fault are simply being reallocated within a larger population. There is more being added to that?

A: I don’t think that you can do a macro management of a very complex disability system.

Q: Is the intention for employers as a collective to pay more under the historic compromise than they were as a collective paying before the historic compromise?

A: I guess that is another way of putting how I read that quote. In 1913 employers paid so much money in the tort system and as a result of worker’s compensation that same amount of money is distributed among all workers. That doesn’t help us from my client’s point of view. The focus should be on the no fault and if you accept that it is a no fault system then it means no fault. If you are injured on the job that means no fault is attached to you and there shouldn’t be any economic loss.

Q: You would say then Mr. Steeves that all people who have a causative action at common law and tort should be allowed to sue? But all others who would have no cause of action because they were contributory negligent or because they couldn’t prove negligence should have the current level of benefits?

A: Everyone should have the same level of benefits under the statute.

Q: The money has to come from somewhere. If you are going to give 70% of the people, if you accept Tysoe and Sloan’s numbers, who would have no compensation at common law adequate compensation then doesn’t there have to be some reduction from the amount that those who have causative action would receive?

A: I have no problem with that. That is the second time I have heard that about the 70 to 75%. That comes from Meredith’s report and it was a German study done in 1897 and certainly we question whether 75% of the reason for accidents is the fault of workers. The other category in there is acts of God and the number is something like 20 or 30%. Mr. Sayre made the point that let’s bear in mind that this was a 100 years ago. I am guessing that 100 years ago a machine that didn’t work and injured a worker was the fault of the worker rather than anybody else’s fault. I think that we have to be careful about using that number.

Q: Although Tysoe accepts it in 1972.

A: Yes and Newfoundland court of appeal thought it was superior compensation in 1992 too. These are all reasons why these matters shouldn’t be taken into the courts.

Q: I still see an apparent contradiction in what you are saying because you are saying that the idea that everyone in the system should get less because some workers are at fault is not what the historic compromise is all about. At the same time I understand you to say that you agree that those not at fault must take less than they would otherwise receive under the tort system. If it is not to pay for those who got nothing why is it then that those not at fault are getting less than they would at tort?

A: We are prepared to accept the compromise to the extent that perhaps pain and suffering isn’t something that is transferable into a systemic system of compensation. We don’t think punitive damages are part of it. Punitive damages are on the prevention side and workers don’t see any economic benefit from that. I don’t think it is inconsistent to say that we can take a reduction from damages under a tort system and also say that there should full and fair compensation under the worker’s compensation system.

See his submission – paragraph 2, page 1

End of that paragraph –

Paragraph 3 – we have no submissions to make on Section 11

Page 2 – Is a doctor also an employer under the act?

• We feel that should be dealt with legislatively through an amendment to section 10
• Mr. Winter focused on the last sentence of section 10 and I understand, from talking with Mr. Bates, that that is not where the heart of the litigation lies in support of the right of malpractice
• Given the opportunity of this commission this matter should be resolved relatively easily through an amendment to Section 10
• I am reminded that exemptions are by industries rather than by occupations so you would exempt the professional sports people and so it probably isn’t the right technique to use that

Page 2 – overreaching of the bar against litigation

• You recall that this concept started with Mr. Justice Meredith a long time ago
• I think he started at $2,000 and his reason for that was that it was the payment to the highest wage earner in the province of Ontario
• $56,800 is clearly not the maximum wage rate of the highest wage earner in this province
• If, as a starting point, that is something to look at
• That is, if the reason of the statutory maximum is to peg it at the highest wage earner in the province then it has to go up

D. Motor Vehicle Accidents on page 3 - 4

• Legislation in New Brunswick permits a worker the right to sue in the case of any mode of transportation or in any case of a motor vehicle accident
• We don’t go that far but we think that there is something to be said for having a statutory bar between co-workers and there should be a bar between a worker and his or her employer but when you get between one employer’s workers and another employer’s workers it is qualitatively different, legally different
• We suggest that this right of election is an important one as it is issues of age, degree of disability, the worker’s earnings, etc.
• It requires some specialized knowledge to give proper advice and we suggest that the Workers' Advisers be given additional resources to deal with that

Page 5 – administrative fees related to legal recoveries

• We question how high the administrative fees charged against excess money is
• Bear in mind that legal costs are taken off before that number is worked out so it is a 29% fee after legal costs have come out
• We don’t say that there should be no administrative costs as we recognize that the Board’s has the legal costs of the claim and the administrative costs for administering the claim
• We wonder whether 29% is high though
• At the bottom of page 5 we point out that not every action commenced by the Board is the same
• Some are settled before discovery, some are settled after discovery, some proceed to trial and so these are not all litigation events
• In fact, many contingency agreements can and should have different levels of compensation for different stages of trial
• It has been a long time since I did a contingency agreement and it may be required by the law society now
• Page 6 contains supplementary information from the Board about what is going on in other jurisdictions and it is uniformly less than BC and in some cases no recovery
• See page 7 for recommendations

Page 7 - excess payment

• This is the point I raised regarding Yukon legislation, which is also in Alberta and that is at tab 10 of our documents in this binder
• In Alberta and Yukon the steps seem to flow like this:
• There are damages
• Legal costs are taken off the damages
• The worker gets a cut off of that net of 25% and the reasoning behind that is that the damages include something for pain and suffering the worker should get part of that
• Then the costs of the claim come off and if there is any excess it goes to the worker

Q: You say that there is the cost of the claim and the actual amount paid out?

A: Yes wage loss, labour cost and presumably administrative costs. That is how it works in the Yukon and Alberta and we think that is a fair way of doing things because the worker should have some benefit from pain and suffering if it is going into the accident fund.

Confidentiality and Privacy

• See Section 5 page 1
• Page 2 – end of 2^nd to last paragraph –
• Another way of looking at it is the business plans attached to our submissions for 1998 – the current assessment rate is $2.12 per $100
• That is about 2.1% of assessable payroll is spent on worker’s compensation
• The numbers using the total value payroll in BC compared to assessments would be a lower number, we think roughly 1%
• The difference may be that total payroll is a larger number than assessable payroll
• See submission, last paragraph, page 2
• On refection of the recommendation (page 3) we realize that during the adjudication process there can be appeal decisions along the way so just saying the adjudication process is probably too broad

Page 3 – board treatment of information on workers’ files

• We are not sure whether the information on Tab 8 is true
• Page 4 – three recommendations
• #3 – Implicit in that 3^rd recommendation is that we don’t think that is a right by itself
• In the course of an appeal they should have the authority to expunge irrelevant information from a worker’s file

Page 5 – disclosure to employers of workers’ files: decision 410

• After point 2 on page 6 – employers want to know what they are not getting on the file
• That is not, in our view, what the relative weight of this system justifies
• Employers are not entitled to, essentially, a fishing expedition on a file
• Issues of relevancy can be sorted out as Mr. Robertson described that it was done in court and if you don’t like what the Supreme Court says then you can go the Court of Appeal
• Of course, in the worker’s compensation system you need 2 levels of appeal in order to obtain that remedy
• After point 3 – Mr. Winter asked us how we would do that
• It is done in court by people who adjudicate these matters
• Other techniques are that you could have a prima facie
• Employers might have to raise a prima facie issue on why they should get more disclosure
• A higher standard is that you could make it a reverse onus – employers don’t get disclosure unless they can prove that they should get further disclosure

Q: Are you saying along with disclosure about the existence of a particular record without describing its contents?

A: A list of what is on there. I don’t see a problem with that

Q: It will say that you don’t get a letter from Doctor So and So’s chart dated on such a date?
A: I expect that given the stringency which the Board applies to disclosure someone might want to disclose the name of the doctors even but I’m not sure whether that is justified or not. I just pose that as something to consider.

• D – use of information on claim files in other proceedings
• Page 8, after second point inset
• Mr. Buchhorn explained that one of the reasons that they wanted to go to a 13-week review was because at about 8 weeks they are often trying to get the worker back to work and then they cut off their wage loss and the return to work strategy is undermined
• It is the same way if the employer has information on the worker’s files then there is an uncomfortableness, at a minimum, between the worker and the employer
• Page 9, middle of 1^st paragraph
• Employers asked for a more practical way to get disclosure because the process they have is too difficult
• We went through this before and it should be difficult
• In our view it is not difficult enough
• They pose a question of what happens when someone has dismissed a – I think Mr. Winter used the term - nonculpable discharge
• As an evidentiary matter the documents in the Board file may have been used to inform the employer but in order to get the documents before an arbitrator they are going to have to subpoena the doctor from the Board and that is the inconvenience that Ms. McDonald was talking about
• If the employer is looking for a practical way then let’s separate the worker’s compensation process and employers can start a new process
• They can get their own independent medical examination, their own doctor, their own report that becomes part of the record for the arbitration and they can use their doctor for that
• It is difficult but we see a separation between the worker’s compensation proceedings and arbitration proceedings

Q: Albeit not any longer in the worker’s compensation in principle what is wrong with using information obtained that is still clearly relevant. There may well be evidentiary problems maybe information in the form of a document is admissible for the truth of the contents in the worker’s compensation context and perhaps it is not admissible in some other proceedings that has its own evidentiary rule. But that is another issue. So you seem to take issue with that?

A: Yes we make a distinction between 2 proceedings – the worker’s compensation proceeding and, in this case, an arbitration proceeding.

Q: The example Mr. Winter used is where the grievance is a result of a decision made directly relating to the original worker’s contraindications.

A: I am suggesting that they be dis-related at some point for the purposes of protecting the privacy of the worker’s information on the file.

Q: Would that work the other way as well? If there is information that a worker has on file pertaining to the employer’s information would that also not be available?

A: Are you talking about Occupational Safety and Health appeals?

Q: No let’s say that there is a worker’s compensation adjudication and as a result of that there is information from disclosure of the worker’s compensation file that the worker would find advantageous to use at the arbitration. Would the worker be precluded from using that information on the arbitration?

A: And the arbitration is about what?

Q: It relates to a decision made by the employer as a result of the worker’s compensation adjudication. That is as far as I got with Mr. Winter’s example. Mr. Robert’s mentioned that it was sick leave denial.

A: Are you talking about the worker’s file or the employer’s file?

Q: The worker’s file.

A: Then that is the answer. It is the worker’s file so the worker should be able to use that information. That is specifically in Section 95 (1.1).

Q: The Ontario model, as it has been described, says that the employer doesn’t get the irrelevant documents but neither does the appeal tribunal. One of the reasons why employers, under the decision you referred us to get the whole file is that the body that is adjudicating has got the whole file and therefore the employers, as a party to the appeal ought to have everything that the adjudicative appellate body has got. Ontario seems to have solved that by limiting what the tribunal gets to what the council office considers to be relevant. Would you see that as a model that we could do here if you were going to be editing what the employer got.

A: Yes I think so. You might want to build in a right of the worker or the employer to make applications to the appeal panel to add or delete information.

Q: It is a natural justice issue in that the employer doesn’t know what information in the file the appellate body is going to rely on if they have more than he’s got.

A: Yes. I have just been advised that there are 6 Boards across the country that do relevancy testing.

Hotline

• It is true that some workers obtain benefits by fraud and yes they should go to jail
• The question is whether the hotline is an important thing to do
• Employers rely on deterrents but the numbers are very small so I am not sure how much more deterrent effect they need
• The Board has its own appeal investigation department, however clumsy they are as described by Mr. Sayre
• We get phone calls from our clients, who are good hard working people, saying that there is a van parked outside
• They could use some more sophistication
• There is one thing left out of the ICBC story and there was a memo attached to the documents that Mr. Winter gave you
• ICBC talked about a modified, less labour intensive way of doing the same thing and we don’t know what that means precisely
• This requires recognition that it is a small problem that has high labour costs
• Also into the mix you need to work in that the number of vindictive, malicious calls is a reason not to have it
• It is not a conclusive reason and obviously if there is a major problem that can be demonstrated that a hotline will help the problem then maybe you should do it
• That is a privacy issue of course in that neighbours may not get along and they could call up the Board complaining about someone so then a field investigator may come around and do things like Mr. Sayre described

E-file project

• Concerned about changes that could be made
• You may recall that the system is set up so that something is automatically committed after one day but you can move information within the system
• Recommendation on page 11 is that the documents cannot be removed from the file where it originates unless there is approval similar to that of changes to committals and further section 95 of the act should be amended to make it an offense to make such alterations
• At the bottom of page 11 we talk about remedies available for workers
• Where there is breaches of privacy we recommend that the act be amended to provide remedies for workers where there is illegal disclosure of these records and it should include money damages, as well as reinstatement in appropriate circumstances

• I have been provided with copies of the Ontario legislation in regard to the question Mr. Robertson asked and I will make copies of that and provide it to everyone tomorrow

• Medical malpractice issue
• Kovac case should be watched from a point that has not totally been brought out – it deals with 2 issues
• It involves not only the dual capacity of the employer concept – can or should the doctor be sued in the capacity as doctor versus his capacity as an employer
• It also deals with the issue of whether a worker, when they suffer medical malpractice as a result of a compensable injury does that make them a worker and therefore the section 10 bar applies or is it just a compensable consequence of a compensable injury and therefore the section 10 bar might not apply
• That has long been a question out there
• When the court of appeal in BC comes down with that decision if that aspect of the Kovac case is confirmed, i.e. that a worker is not really a worker in that sense when there is compensable medical malpractice then the causative action against the doctor will be available and that issue will become redundant
• If court does change that aspect of it then the issue will still be, it seems clear from the Supreme Court of Canada’s direction on the Saskatchewan case, is that the dual capacity test will be overturned

• Issue about high wage earners
• The issue in regard to universal coverage is the coverage of the employees and not necessarily the coverage of the doctors themselves

• Mr. Winter commented on self-incrimination
• We have heard that over the years and also from doctors and so much that WCB makes it compulsory for doctors to report the system it is unfair for a worker to be able to sue them through the subrogated interest or for the Board to sue them through the subrogated interest

• Mr. Sayre’s description of some questionable activity on board officers
• Terminology is that policy and procedure regarding board officers are in place and they are available to the commission
• They do not engage in fishing trips" without cause
• The Board doesn’t engage in or in any way condone the type of activity described