May 2009

With Respect

Why did the Canadian government allow the province of Ontario to create the WSI Act 1997 and the subsequent Bills 99 and 114. To an ‘Ordinary Person’, it would appear the Act and the attached Bills are noncompliant with the North American Free Trade Agreement (NAFTA) and the North American Agreement on Labour Co-operation (NAALC) of which Canada became a signatory in 1993 and why hasn’t the government of Canada informed the Ontario government to bring the Act and subsequent Bills in line with NAFTA and the NAALC?

 

WSI Act 1997 sec 1. 2.1

(1) A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code. 2005, c. 29, s. 7.

 

The above section of the Act, exempts WSI Act 1997 from respecting the Charter of Rights and Freedoms of Canada (charter) and the Ontario Human Rights Code sections 1 & 5 and by doing so allows for the Workplace Safety and Insurance Board (WSIB) to perpetrate age discrimination of the disabled by occupation (D/W) in many of the subsequent sections of the WSI Act 1997. In essence the D/W is moved into a provincial WSIB subculture where human and charter rights are further disseminated by the WSIB.

 

The NAALC states quite clearly, labor laws were to be in compliance, yet in 1997, four years after the NAALC signing; the WSI Act of 1997 was created and enacted into law in spite of the inconsistencies of compliance to NAFTA and the NAALC. To further the D/Ws plunder of rights, Bill 99 was introduced which did away with the use of the word ‘compensation’ from Workers Compensation Board and allowed for the creation of the WSIB, an ‘Employers Insurance Company’. Bill 99 slanted the founding principles of the workers compensation system in such a way, the D/W was penalized 15% of their net working pay because they were injured at work. The onus of proof was thrown on to the D/W and the employers and the WSIB began spending millions of dollars from the accident fund to prove the contrary. The no fault system prescribed in the founding principles, would basically cease to exist. Delays and denial of claims became the mainstay of the WSIB and the D/W was forced further appeals to receive a fair and equitable disability benefit. Pensions were no longer paid for life and after the year

1999, pensions were not paid period. Loss of Earnings (LOE) replaced pensions, but LOE only paid the D/W until age 65 in spite of the disability being for life. This is only the tip of the ice berg.

 

Bill 99 also allowed for the creation of the Workplace Safety and Appeals Tribunal (WSIAT). The NAALC contains the outlines that must be adhered when governments enact new labour law and appeals tribunals. Appeals tribunals were to be created in compliance with the NAALC. The WSIAT is a WSIB entity. WSIAT is not separate nor is it impartial. WSIB policy is created by the WSIB’s ‘sole interpretation’ of the WSI Act 1997. The WSIAT appeals are decided not on common law, but rather must rely and decide on policies created by the WSIB and its ‘sole interpretation’ of the Act.

 

WSI Act 1997, Part XI Appeals and decisions, section 118 (3) & (4) Finality of Decisions, protects the WSIB and the decisions it renders from being held accountable in an ‘Ordinary Court’ of common law and Section 119 further states the WSIB, “shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent”. What kind of tribunal or court of this country is not bound by legal precedent and why does the WSIB not have to rely on past decisions and precedent set by their own WSIAT tribunals, thereby forcing D/W’s into totally unnecessary appeals?

 

Recently the Ontario provincial government and the WSIB, added even more hobbles to the already vulnerable D/Ws, by severely limiting the right to representation and council for WSIAT hearings. The WSIB has the right to pre-approve the appellant’s choice for representation at the tribunal proceedings. The D/W can no longer obtain affordable representation at hearings since Bill 114 was enacted by Ontario and the WSIB. Unless D/W reps are under the umbrella of the Upper Canada Law Society (UCLS) or happens to be a friend (which the board will vehemently try to prove the contrary), D/W’s are forced to either spend money they don’t have or seek representation from the Office of the Worker Adviser (OWA) (also a WSIB entity), or go for a lawyer that accepts legal aid certificates, which is also bound by provincial and UCLS policies. Just to show the unfairness of the Workers Compensation (WCB)appeals system I will include a submission from a D/W’s family member.

 

“To show the unfairness of the system the Appeals Commission is represented by their own lawyer, Sandy Hermiston who is paid out of the accident fund and the "Board" is represented by Curtis Craig who is also being paid out of the accident fund which legally belongs to workers and held in trust by the "Board", yet any worker who cannot afford legal counsel are forced to represent themselves as the Office of the Appeals Advisor does not and will not participate in a Judicial Review.

 

Is this judicial fairness when workers are forced to go before the courts without knowledgeable legal counsel because of lack of finances as opposed to the Appeals Commission or the "Board" who use the money from the accident fund in a frivolous manner to intimidate a worker who dares to question the unfairness of the appeals process which has been determined by Justice Friedman that the appeals process does not work and operates in a culture of denial?

 

This is the wonderful system that the provincial governments have forced unto workers in the guise of protecting injured and disabled workers”.

 

The above was from a person living in Alberta but its pretty much the way the WCB’s do business across the dominion.

 

The WCB’s in Canada because of the control they have over the D/W’s and their family’s lives are also responsible for ill mental health to the D/W and cause the D/W to live in constant fear of losing their rightful benefits. D/W’s are forced into quick ‘return to work programs’ before the ‘time for healing of an injury’ has passed. D/W’s are forced into Labour Market Re-entry (LMR) to train for menial types of work with a much lower entry level starting wage so the WCB’s can say the D/W is trained and then ‘deem’ the worker to be employed in that job. Whether or not the worker has found employment no longer matters and the WCB adjusts the workers benefits accordingly or lower in most cases. Imagine a heavy equipment operator earning $30.00/hr being reduced to $9.50/hr and the social-economic impact and ‘stress’ that accompanies. Some D/Ws are not provided with any training. They are not offered an LMR and they will only receive benefits until age 65. These D/Ws are referred to as being unemployable either because of their disability or the cost of training in the identified vocation is not compatible with the WCB cost effectiveness. In other words, in Ontario, the WSIB can back out of its duty to provide for the D/W and sentence him/her to a life of poverty with nothing after age 65 if the D/W is found to be unemployable.

 

The various WCB Acts and the boards that administer them across Canada, have been the cause of the feeling of helplessness to those that have been assimilated by the WCB into the permanently D/W sub-cultures. Our human, civil and charter rights have been stolen from us. Helplessness leads to hopelessness and hopelessness leads to severe physical, mental, psychological and emotional secondary wounding of the D/W. Sometimes this can and does lead to death and death by suicide. I don’t recall either NAFTA or the NAALC mentioning, the WCB’s across Canada were allowed to commit homicide as described in Section 222, idem (5)(d) of the Criminal Code of Canada, without fear of prosecution.

 

The WCB’s and in particular the WSIB, to the ‘Ordinary Person’, are not in compliance with either NAFTA or the NAALC and must be brought into compliance before these broken WCB systems cause anymore destitution, disparity, and death in Canada.

 

Peter Clare