Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Human Rights complaint where the complainant alleges wrongdoing by her own father

Christina Farrell was an officer with the Barrie Police Service when she suffered an assault in the workplace that led to a miscarriage. She claims that she was severely beaten after being directly ordered to enter the cell of a rowdy female inmate – known to police as potentially violent – even though she reminded her superior that she was pregnant. Within a few hours of the beating, she began to suffer severe bleeding and miscarried. She further required emergency surgery.

The event is said to have occurred in 2001.

According to a March 17, 2011 article in the Toronto Star, the senior Farrell is said to have told his daughter that if she was smart, she would “just shut [her] mouth, and pretend like it never happened, or it would affect her career as well as look bad on him.”

Farrell also alleges that while she was still a rookie cop, she suffered a sexual assault at the hands of another police officer, allegedly a friend of her father – Inspector Jim Farrell. She says she did not report the incident because the perpetrator was her father’s friend, and because “no female reports sexual harassment in the police without being labelled a rat and being ridiculed for it.”

Farrell specifically lays accusations that her father created a poisoned work environment and alleges that she eventually left the policy force because of stress, which she attributes partly to her “father’s authority on [her] husband”. Her husband, Nathan Bowman, is also an officer on the Barrie force and directly reports to Farrell’s father.

The Farrells have been estranged for several years. There is no indication of why Ms Farrell waited so long to file her complaint, but Barrie Police Services and her father have declined to discuss the case since it is before the Human Rights Tribunal of Ontario.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

WSIB Adjudicator sees the light

In a blog posted here March 9 by Cézanne Charlebois, we advised of an adjudicator who refused to reconsider her entitlement decision, even in the face of incontrovertible proof that the worker had fabricated a story. There was video evidence and telephone records to prove that he was not where he claimed to be – in fact, nowhere near it – when he alleged to have sustained a workplace injury. He simply could not have injured himself as he claimed. This information had already been provided to the adjudicator by the employer, but she refused to consider it or to reconsider once she had made her ruling.

The employer felt so strongly about this injustice that they incurred the expense of hiring a lawyer. They, as we, also believed the worker needed to be held accountable for what was clearly an attempt to misrepresent.

We made a detailed submission to WSIB and we are pleased to report that the adjudicator relented and agreed to reconsider her decision. Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.

In our eyes, the worker is guilty of violating s.149 of the Workplace Safety and Insurance Act and should face charges accordingly. That fight is still to come, but we have the satisfaction of knowing that his employer is not facing the costs of what amounted to a fraudulent claim.

Posted by Paul Harris

Bill 160 update

On March 3, 2011, the Ontario government introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  The Bill’s primary intent is to remove from the WSIA (and, thus, from the Workplace Safety and Insurance Board) oversight for health and safety certification and training. There is also the intent in the Bill to create a Prevention Council and a Chief Prevention Officer under the OHSA, although details are scant about what those would be expected to accomplish and how they would be funded (currently, certification and training is funded by WSIB).

One interesting proposed amendment to the WSIA would see WSIB paying construction workers for their time off work while fulfilling the requirements to become certified under the OHSA.

On March 29, the Bill passed Second Reading, entirely unedited, and was referred to the Standing Committee on Social Policy. Interestingly, the Second Reading vote was 73-6 in favour of the Bill as written, which means 28 MPPs didn’t show up for the vote.

The Standing Committee is empowered to study and report on all matters relating to the mandate, management, organization or operation of the ministries and offices which are assigned to it as well as the agencies, boards and commissions reporting to such ministries and offices. Any proposal from a member of this Committee must be adopted by at least two-thirds of the members of the committee, excluding the Chair. The Committee currently has nine members, six of whom are Liberal MPPs.

Posted by Paul Harris

An honest lawyer

A court case in England might have provided the high point for honesty among legal professionals.

A young man in Bristol was out drinking with his friends one evening in February and apparently had a bit too much. As a lark, his friends stripped him of his clothes and dressed him in just a t-shirt and fishnet stockings. He was later arrested and pleaded guilty to using threatening, abusive, or insulting words and behaviour. At the time of his arrest, he was also clutching a purse.

But his honest lawyer gave the magistrate reason to smile. He stood before the court and said, ”My client is an idiot – and on the night in question he was a drunken idiot.”

The idiot was fined £100, and was ordered to pay a £15 victim surcharge and £85 costs.

There must be some kind of award for his lawyer.

Posted by Paul Harris

Bill 160 will change health and safety delivery in Ontario

On March 3, 2011, Minister of Labour Charles Sousa introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  At this point, it has only undergone First Reading so there may be a long road ahead before it might become law. Since Ontario is facing a provincial election in October this year, it might die on the order paper before an election ever occurs.

The gist of the Bill is to remove from the WSIA (and, thus, from the WSIB) oversight for health and safety certification and training.

There is also the intent to create a Prevention Council and a Chief Prevention Officer under the OHSA although details are scant about what those would be expected to accomplish.

One interesting proposed amendment in the WSIA would see WSIB paying construction workers for their time in regard to fulfilling the requirements to become certified under the OHSA – sort of compensation for learning how to help others not get injured and need compensation themselves.

Since those certification and training matters will no longer be provide by WSIB, does that mean employers can expect to see lower premiums?

Posted by Paul Harris

WSIB fails to apply law about CPP benefits

Section 43 of the Act describes how benefit entitlement is to be calculated. Within that, section is the following text:

(5) The calculation of the amount of the payments is subject to the following rules:

2. The amount described by clause (2)(b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Québec Pension Plan in respect of the injury.

This seems to be a clear statement of the legislature’s intent – in law, as you know, the word ‘must’ is not negotiable. That is, if a compensable injury also attracts benefits under the Canada (or Québec) Pension Plan, then WSIB benefits are to be offset by an equal amount.

WSIB Case Managers routinely and regularly, almost without fail, do not take CPP/QPP payments into account when calculating WSIB payments. Indeed, they regularly tell employers or their representatives that they don’t ask the worker if s/he has applied, or suggest to the worker that they should. We fail to see how the Board can accurately apply the law if Case Managers are choosing to overlook the necessity of pursuing possible CPP/QPP confirmation from workers who appear likely to qualify for those benefits.

WSIB Policy 18-01-13 states:

Loss of Earnings (LOE)
The Workplace Safety and Insurance Act provides:
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.

Future Economic Loss (FEL)
The Workers’ Compensation Act provides:
When calculating FEL benefits and determining the amount of net average earnings the worker is able to earn in suitable and available employment after the injury, the WSIB must have regard to any disability payments the worker may receive for the injury under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP).

[Note we haven’t added the emphasis – that’s the way it is in the published policy. We presume, therefore, the Board of Directors (who approve policies) really mean it.]

It matters. For Schedule I employers, they are bearing at least part of a burden that the Act says they should not. For Schedule 2 employers, they are paying the full freight for WSIB ignoring its own legislation.

Posted by Paul Harris