The U.N. Committee on the Rights of Persons with Disabilities met in Geneva this week (4th and 5th of September) to consider reports on Canada’s compliance with the international Convention on the Rights of Persons with Disabilities (CRPD). The Ontario Network of Injured Workers Groups (ONIWG) delivered its submission asking the Committee to examine the issue of deeming [see ONIWG media release]. This practice is used by Ontario’s Workplace Safety and Insurance Board (WSIB) and workers’ compensation boards across Canada. It cuts or eliminates benefits from injured workers with a permanent work-related injury unable to find a suitable job by declaring them employable – then deducting their phantom wages from a job they do not have and have no real hope of getting. As ONIWG’s report Phantom Wages, Empty Pockets shows, by the WSIB’s own statistics, in Ontario “almost half of permanently injured workers have neither jobs nor workers’ compensation benefits.”
“Deeming creates poverty for injured workers with permanent disabilities … The number of injured workers whose benefits are so far below the poverty line they have to turn to social assistance is shocking. The Ontario statistics are well over 3000 cases a month.” (Janet Paterson, ONIWG President
Rights of persons with work-acquired disabilities
The submission encourages the U.N. Committee to identify the Canadian laws and practices of deeming in employment injury systems as a violation of human rights under Articles 4, 8, and 28 of the CRPD. For over 75 years employment injury benefits “have been recognized by the UN multilateral system as an indispensable and irreplaceable type of income security that is an essential element of social security.” By permitting these benefits to be suspended through deeming, the submission argues that Canada fails to protect the right to income security for persons with work-acquired disabilities. Deeming violates the rights of persons with disabilities to an adequate standard of living and to social protection without discrimination on the basis of disability.
As Jeffrey Hilgert, a professor of industrial relations at the Université de Montréal who helped guide ONIWG’s submission, stated in a recent Toronto Star article , Canada has clear obligations to ensure permanently injured workers can go on to live in dignity — with a secure income. “The practical implications, if you read the international standards, are very concrete,” he said. “The practice of deeming phantom jobs would have to end.”
By its legal assumption that workers’ compensation claimants must be “incentivized” to return to work, deeming also institutionalizes the notion of “malingering” and promotes stigmatization of injured workers.
The recommendations proposed for the Committee to consider are intended to ensure that Canada’s workers’ compensation systems are based on human rights values, not the values of cost containment for employers. Also included, a recommendation on maintaining adequate funding of legal aid services to injured workers.
Following Wednesday’s submission in Geneva, the UN committee could decide to adopt the issue in its List of Issues Prior To Reporting which will be the questions that Canada will have to respond to in the Committee’s second review of CRPD implementation.
The submission has also been sent to the UN Special Rapporteur on the Rights of Persons with Disabilities as a follow-up to her official visit to Canada of April 2-12, 2019.
- Ontario Network of Injured Workers. 2019 Sep. 4. Deeming Laws and Practices as Violations of the Rights of People with Work-Acquired Disabilities in Canada: Submission to the 22nd Session of the UN Committee on the rights of Persons with Disabilities. [Word version] See also ONIWG’s submission to the 2016 first review.
- Sara Mojtehedzadeh. 2019 Sep. 4. “Ontario injured worker advocates take discrimination concerns to United Nations” Toronto Star
- Larry Fedoruk Show. 2019 Sep. 5. Interview with Willy Noiles, ONIWG Exec. VP. Newstalk 610 CKTB (audio 7:53 mins)