Injured worker leader Steve Mantis has played an active role in major law reform initiatives over the past two decades. A major force in the Ontario Network of Injured Workers’ Groups and Thunder Bay & District Injured Workers’ Support Group, Steve was present at the Supreme Court hearing in Ottawa. Read or listen to his personal account in mp3 format (8:08 mins) below
Injured workers at the Supreme Court
(by Steve Mantis. Published in IAVGO Reporting Service, 2002, 16(3): 16-18)
One of the highlights of my last year was attending the Supreme Court of Canada on Dec. 9, 2002. The Court was hearing the Martin and Laseur v the Nova Scotia WCB case. The Ontario Network of Injured Workers Group (ONIWG) had gained intervener status and the room was packed with injured workers and their representatives.
Some background on the case is that the Nova Scotia legislature passed a bill to limit benefits to workers with chronic pain disability to four weeks. Mr. Martin and Ms. Laseur were denied benefits under this new law and appealed to the NS Workers Compensation Appeals Tribunal (WCAT). The WCAT found that the workers were being discriminated against under the Charter of Rights and Freedoms and overruled the WCB. The cases ended up at the Supreme Court for a final determination.
The day of the hearing it was cold, clear and windy in Ottawa . minus 20 degrees not counting the wind chill. The Supreme Court is just down the street from Parliament Hill in a big, old, fancy stone building. As the courtroom slowly filled up with lawyers, law students and ONIWG supporters there was excitement in the air. (The night before, Injured Workers Consultants organized an educational for the injured workers attending the case, which worked well to orient the layperson on both the process and the background of the case.) The nine justices in black robes entered and sat on the raised platform in the front.
First up was Anne Clark of the N.S. Worker Adviser representing the injured workers. She explained how this new section of the Act removed benefits for all workers who have chronic pain disability (CPD) . no voc. rehab, no help with return to work(RTW), no long term medical or financial benefits. Some of the Supreme Court Justices couldn.t understand how the WCB wanted the injured worker to RTW but won.t provide any assistance.
The WCAT of N.S. then argued for the ability of the WCAT to invoke the Canadian Charter. As the final level of appeal in a closed Workers Comp. System, the WCAT plays an important role in maintaining the checks and balances needed in a fair and open public system. Without their ability to interpret the law, the whole system was vulnerable to political abuse.
Ena Chadha represented ONIWG. She spoke strenuously about the need for the Court to protect the rights of workers who became disabled. With the Justices paying close attention, Ena talked about the resulting loss of self esteem that disabled workers experience when their individual disability was denied as real. This offends human dignity rather than enhancing re-integration.
She also spoke about the major review of CPD recently done in Ontario that confirmed that CPD was real and should be treated as any other disability.
The Canadian Labour Congress made the point that workers gave up the right to sue and that the Court needs to ensure fair treatment under the WC System. Nova Scotia law now excludes injured and disabled workers from receiving help in RTW, which the Supreme Court has previously ruled was unacceptable, such as in the Human Rights cases on accommodations. This completed the appellant side of the proceedings.
Following a short recess, the WCB of Nova Scotia presented their case. Chronic Pain Disability (CPD) was a major cost issue in N.S. with 251 claims before their WCAT under the CPD section that are awaiting the outcome of these cases. As well, the section of the Act limiting benefits to CPD was meant to deal with the WCB’s debt.
This seemed to not go over well with the Supreme Court Justices as a valid rationale. They questioned the WCB rather vigorously on how can you deny a person the opportunity to present their individual case and have a decision based on the merits of that case.
The Attorney General of N.S. argued that the elected government had the power and responsibility to regulate the system. The Justices strongly questioned how the government can determine what the circumstances are with an individual with chronic pain without an individual assessment.
The Attorney General of Ontario argued that a tribunal can only apply the Charter when their enabling Act specifically includes this function. This would give the government total control and can.t be over ruled by any tribunal. They Attorney General of British Columbia basically echoed Ontario.s position on this. Their argument didn.t seem to go down well with the SC Justices.
The Chief Justice then adjourned the proceedings taking the case under advisement. It is expected a decision will be handed down within the next year.
The outcome of the case is yet unknown but the issues are very important to the future of workers all across Canada. If a provincial government is allowed to deny compensation for everyone with a particular work related disability, then disabled workers may lose compensation for long-term disability. And if the final level of appeal in the WC System (WCAT) is prevented from protecting our rights under the Charter, workers may lose those rights in the future.
The fact that injured workers were there in the Court to act as witnesses to the proceedings, I believe, helped the Justices see the importance of the case to real live people. I was proud to be one of those injured workers at the Supreme Court of Canada.
Thanks are due to Injured Workers Consultants, a community legal clinic based in Toronto, that organized the participation of so many injured workers, the Canadian Labour Congress for helping finance the travel costs of many of the injured workers and last, but not least, to ARCH, the legal clinic that represented ONIWG at the Supreme Court.