The government managed to sneak some changes to the Workplace Safety and Insurance Act into this year`s Budget Measures bill, Bill 127 . The changes were buried in the very last schedule (Schedule 33) of the Act, which passed into law on Wednesday May 17th. Despite extremely tight time frames, worker advocates, including the Schedule 33 Coalition (of legal clinics, injured worker groups, lawyers and doctors), made submissions and presented to the Standing Committee on Finance and Economic Affairs’ only public hearing on May 15.
Mental stress changes: too little, too late
The good news is that the Bill partly fixes the mental stress problem. (Bill 99, in force 1998, removed workers’ compensation for chronic mental stress, providing coverage only for workers who suffered an acute reaction to sudden and unexpected trauma. This excluded workers who developed mental stress injuries that emerge over time. Three years ago, the Workplace Safety and Insurance Appeals Tribunal declared the bar on chronic mental stress to be discriminatory and contrary to the Canadian Charter of Rights and Freedoms).
Bill 127 amends the legislation to extend workers compensation entitlement for workers with chronic mental stress. This is good, but could have been better. It’s too little too late. Too little, because the Bill retains the prohibition on mental stress that arises from employment decisions. This particular part of the legislation has not yet been addressed, but will probably be the subject of a future Charter challenge.
It’s too late because the fix is not retroactive and will only apply to injuries after 2018. Although the legislation was found to be discriminatory and declared therefore illegal 3 years ago, it has actually been illegal since the section came into force in 1998. That means there are twenty years of workers who are shut out of entitlement for chronic mental stress injuries.
The WSIB has already released its new draft policy on mental stress with a consultation deadline of July 7th.
Alarming expansion of the WSIB’s policy-making power
The other ominous change affects the Workplace Safety and Insurance Board’s policy making powers under section 159. The Board will have the power to make policies concerning the interpretation and application of the Act, including evidentiary policies, and adjudicative principles to be applied in determining benefits. The policies can also establish different evidentiary requirements and adjudicative principles for different entitlements. Since there was no stakeholder consultation, it is unclear why the government has added these new policy powers. There is concern that these powers may be used to neuter the Appeals Tribunal’s decision making, and to open the door to setting higher standards for different types of injuries, such as occupational disease.
Pension supplements for older workers – positive action
For older injured workers such as Antonio Mauro the amendment to the supplement provision for workers injured under the old Worker`s Compensation Act (the pension system) comes as a positive change after years of advocacy. Since the supplement is tied to Old Age Security, each time the OAS amount is increased for inflation, the WSIB reduces the supplement by the same amount. Since the supplement is not adjusted for cost of living, this meant that injured workers were getting smaller and smaller supplements each year as the WSIB would claw back the OAS increase. Three private members bills on this issue have previously died, so we are pleased [Supplementary Submission] that Bill 127 will finally remedy this injustice.
- Schedule 33 Coalition of Stakeholders. 2017 May 15. Submissions to the Standing Committee on Finance and Economic Affairs Re Bill 127 (Amendments to Workplace Safety and Insurance Act, 1997)
- Ellis, Ron. 2017 May 12, May 24. “Ontario’s WSIB and the Bill 127 Amendments – The Power Implants, Pt I” and Pt II. Administrative Justice System Reform (blog)
- Singleton, Antony. 2017 May 10. “The Good, The Bad And The Ugly: The WSIB’s Draft Chronic Mental Stress Policy.” Just Compensation (blog)
- Ontario Federation of Labour. 2017 May 1. OFL Statement on Chronic Mental Stress Provisions (Schedule 33) of Bill 127. Toronto: OFL
- IWO Fact sheet. 2016 Nov. 15. Workplace Chronic Mental Stress Claims