Debates of October 30, 2006 (day 18)

Thank you, Mr. Ramsay. The motion is in order. To the motion. Mr. Braden.

Thank you, Madam Chair. This motion speaks to issues, longstanding issues I think with the general sort of service orientation and attitude and approach toward being an accessible and an open organization. Madam Chair, I know that going into WCB offices here in Yellowknife has some very stringent security requirements regarding access. I have tried to work with and assist workers who have had issues with the WCB, and I know that one worker in particular was denied and just total outright flat denied access to the office even though he was in the company of my constituency assistant. I think there are extremes, Madam Chair, of accessibility and openness that need to be addressed and that is the intent of this motion, to try and steer WCB into becoming more of a service organization that we cannot only have confidence in, but know that we have a reasonable degree of access to it. Thank you, Madam Chair.

Thank you, Mr. Braden. To the motion.

Question.

Question is being called. All those in favour of the motion? All those opposed? The motion is carried.

---Carried

Thank you, Madam Chair. I move that this committee recommends that mandatory orientation and training be implemented for all new Workers’ Compensation Board employees before they are allowed to engage clients. The committee further recommends ongoing professional development be programmed for each employee, manager, executive and member of the Governance Council and Appeals Tribunal and documented and reported annually as a key component of performance measurement. Thank you, Madam Chair.

Thank you, Mr. Villeneuve. The motion is in order. To the motion. Question is being called. All those in favour of the motion? All those opposed? The motion is carried.

---Carried

Thank you, Madam Chair. I move that this committee recommends the government introduce amendments to the Workers’ Compensation Act as set out in WCB’s mandate, including its duty to assist injured workers in clear terms. Thank you, Madam Chair.

Thank you, Mr. Pokiak. The motion is in order. To the motion. Ms. Lee.

Thank you, Madam Chair. I just want to draw the attention of the Minister to this motion, because I think it’s a big one and it’s one that if done properly could really make a difference in the issues that we’re dealing with in this report. I would really like to recommend the Minister and anybody who cares to understand this issue to go and look at the transcript of our AOC public hearings where the workers’ advisor, Colin Baile, spoke to us about what Meredith principle means and the history of it, and how that in the last 60 or 70 years we, as a society, might have lost our way in living up to that principle. In his opinion, and I tell you it is an excellent presentation, and I took copious notes of that presentation, but that is available in print, in transcript. The one that I remember in that discussion was the fact that the Meredith principle that WCB infrastructure is built on is understood commonly where the benefit of doubt should always fall with the workers. But I think for those injured workers that have been through the process, and Mr. Baile who works with injured workers all the time, the practice now is becoming that the benefit only goes to injured workers where there is sort of a tie. Instead of benefit of doubt always falling with injured workers, that benefit of doubt only kicks in where the WCB looks at the situation, whoever is looking at the case, they look at it and say well everything being equal, you’ve got the employer’s side or doctor’s side and the worker’s side, and where everything being equal, the tipping issue is a Meredith principle. I argue to the Minister and anybody who cares to see this, that that is a wrong application of the Meredith principle and that’s a foundation for a lot of ill that exists in our WCB system. I think we, as a society, and we, as a Legislature, should stand up and say you know what, we don’t agree with how that applies. I think, if necessary, the Minister should look at changing the legislation to make it clear that the benefit of doubt has to go to the workers as it was always meant to be.

Another thing that Mr. Baile mentioned is the fact that our society has changed and that the Meredith principle came around when there used to be minors; there used to be seven-year-old slave labourers in the mine digging coal. We don’t live in that kind of society anymore, and there are new injuries like chronic pain and a lot of others things and depression and mental illness and all sorts of things that exist and WCB’s system is just not recognizing in order to fulfill a take that we may need a legislative statement very clear in WCB legislation to give that strength. So that’s the kind of thing that I’ll be looking from the Minister to make sure that please do not feel limited and restricted to the WCB legislation as they exist, because if there are gaps, then the Minister should exercise his powers to change those legislation. Given the report that we have here and the support you have from the Regular Members, and I have to tell you that I am sure that no Minister will have any problem passing such legislation here.

Another thing I want to say I want to assign to the new Minister to look at is that the WCB legislation the way its written is very lopsided toward ratepayers. There’s a very clear statement in the mandate of WCB that the mandate of the council is to look after the ratepayers, but there is no such strong, clear provision there that says that WCB looks after the workers too. I don’t think that is clear enough and that’s one more area of mandate. So all the work of WCB falls from that lopsided mandate. So whenever the worker is not getting their fair share, we’re being pointed to this legislation that’s lopsided. I would really urge the new Minister to look at that and I would really encourage him to really look at changing the mandate to equalize the power balance between the workers and the employers, because the Auditor General’s report came out to say that WCB is following all the rules and principles and policies and law and when you see that the outcome is such an unfair situation for a number of cases where there is a consistent injustice going on, then there is something wrong with the structure. I believe that it may be that’s the only way to fix that, is by changing the law and I would like the Minister to really inquire and he should get his own legal counsel if necessary to look at that. because I respect the independence of WCB, but I have to tell you that I believe that we have power within this Assembly to make sure that our own power to make laws and make good laws are exercised. Thank you, and I will be supporting the motion.

Thank you, Ms. Lee. To the motion.

Question.

Question is being called. All those in favour of the motion? Thank you. All those opposed? The motion is carried.

---Carried

Thank you, Madam Chair. I have a motion. I move that this committee recommends the Minister responsible for the Workers’ Compensation Board direct the workers’ advisor to draw up a proposal to provide for assistance to workers who need expert medical evidence or legal assistance with judicial reviews to move their case forward.

Thank you, Ms. Lee. The motion is in order. To the motion. Mr. Braden.

Madam Chair. The circumstance that injured workers can find themselves in if they have been through, I guess, the standard cycle of reviews and appeals before the WCB, is that they will find themselves without the resources or the ability to call on legal or medical help to help them advance their case. That is of course with the exception, Madam Chair, of having access to the NWT’s legal aid system. We now are chronically under-resourced and understaffed in the legal aid area, Madam Chair, and so that means that an injured worker who may have very few or no alternatives other than to continue to work with or try and stay with the appeals or review process within the WCB, these workers have very little resources of their own and very darn few provided by our system, as I said, other than legal aid. So the idea of providing more resources to injured workers I think, as I say, once they have gone outside or beyond the regular scale of reviews and tribunals and appeals make some sense, Madam Chair, because every time a worker and hopefully his lawyer, and in a lot of cases a legal aid lawyer, will make a case to the WCB or tribunal, but find themselves up against a veritable phalanx, Madam Chair, of other lawyers and medical professionals ready to take them on. It is very unfair. It is very lopsided, Madam Chair.

In making this recommendation, committee does not have the answers as to exactly how it could be put together, but we are proposing here -- and I can bring to the committee the cooperation, the concurrence of the workers’ advisor, Mr. Baile, that he is prepared to assist with this -- it is how to look at how could we provide some degree of assistance to workers in areas medical or legal or perhaps others that would help them with their case and that would somehow square them up with the resources that the WCB already has at its disposal. I think this is only a fair type of resource that we should offer injured workers in giving them at least a fair degree of representation in this system. So it is there with the optimism, as I say, and the cooperation of the workers’ advisor who we think is best equipped to really assess what the injured workers need, and to be able to put forward, you know, realistic and tangible ideas about how to meet those needs, Madam Chair.

Thank you, Mr. Braden. To the motion. Ms. Lee.

Thank you, Madam Chair. I need to speak on this motion because I believe this is next to the motion about changing the mandatory, or the Minister reviewing the mandatory that I spoke to earlier. I think this is one single thing that we could make a lot of difference to.

Madam Chair, I have to say that while a lot of discussions here evolve around injured workers who are unsuccessful in their claims, I think all the Members here are aware of the fact that what we are trying to do is create a fair system. The way I see it, it’s okay to go through the Workers’ Compensation process for most of the injured workers who get their claims answered to and they’re satisfactory; but for those who fall through the cracks -- and there is a commonality in cases like chronic pain and the disabilities that are not recognized that has to do with mental disability and such -- once they fall through the cracks, they don’t have any assistance whatsoever other than the workers’ advisor. In thinking about it, I think the only way that we could fix this is to balance the power structure and that we give more power to the workers to do the fighting themselves.

I agree with WCB and the officials there who may feel that this forum here is not the appropriate place for injured workers to bring their claims to. I agree with that to a certain extent. I believe our job, and the Minister’s job, is to do whatever is necessary, either as redistributing resources or changing the laws to equalize the power balance. I have to tell you I know one of the Governance Council members said, well, we can’t do that, we can’t give resources to workers to sue us and that would be, you know, not good use of resources.

I say to them, then why is it okay for the WCB lawyers and WCB doctors and all the infrastructure built in there to work against the injured worker? Why is it okay to use ratepayers’ money, millions and millions, to establish and protect that claim or whatever? I know it would be offensive to the doctors and lawyers who work at the WCB for anybody to suggest that they are not for the workers, but I tell you if you are a worker sitting on the other side, they really feel like they have nobody. If they get no claims, they have to get their own lawyer and they don’t usually get legal aid for that. But not only that, the WCB system is not a regular court procedure where if you lose a case at a lower court, you appeal it. If the appeal court says you’re right, then you win. Well, that’s not how the WCB system works. When you win a WCB appeal, you have to go back to right where you started and you get your hearing reheard by the same people under the same rules under the same medical opinion under the same argument of that reviewed and then you may just fall back again. That’s why you see these cases falling back over. That’s why you see these cases falling back over and over and over; 17 years, 21 years. You can’t make any changes.

Even when there are Supreme Court decisions from the Supreme Court of Canada, the Supreme Court of the NWT, the highest court in the land says your policy is wrong, WCB can, if it chooses to, use all of its legal resources, all of its financial resources, to read the policy as narrowly as possible and not necessarily look at changing the policy that would work for the injured workers and, for that reason, the only way I can see this changing is to equalize the power to the workers. Why is it to use most of the money or use all of the surplus in the fund to just maintain the status quo? Why is not okay to set up a system where workers could have resources they need? I tell you, I would make an argument that this will save money. If WCB people thought that their arguments would be checked and that their legal opinions would be countered, and that their medical opinions could get be looked at by other resources, I tell you they would be more inclined to do the right thing by the workers. Right now, they have nothing to lose. They have nothing to lose by not changing the policy to follow with the Supreme Court decisions or anything. Right now, everything is designed, in my opinion, to maintain the status quo. At some point, we have to say we need to equalize this power, so that there is a necessary check and balance and that there is pressure on the WCB to change policies accordingly when there are new conditions and diseases that come up, when there are new decisions from the Supreme Court that allows them to make decisions. They would know if they don’t do it, there is another counterforce. There is a counter balance on the other side that would come at them with a contrary opinion and they would be as strong as their own power. That is the only way I see that my work as an MLA doesn’t continue to evolve injured workers coming to my door crying and begging, and me having to tell me them there isn’t a lot I can do other than writing these reports and hoping that something would happen.

I would be willing to talk with the Minister and whoever wants to talk more about this, but I think this is not just prolonging the legal process or creating jobs or lawyers. I am not saying that at all. I look at this as a means to improve the power of injured workers, so they have more to go with than having to tell their stories over and over for 17, 21 or 25 years without seeing anything happen. Thank you. I hope I added new layers of argument for this motion.

Thank you, Ms. Lee. To the motion.

Question.

Question is being called. All those in favour of the motion? All those opposed? The motion is carried.

---Carried

I move that this committee recommends that, as a priority, the Minister responsible for the Workers’ Compensation Board work with the Governance Council to develop options for an independent means of resolving conflicting medical opinions that provides finality, and that reflects the basic principles of the workers’ compensation system and, in particular, the assumption in favour of the worker. Thank you, Madam Chair.

Thank you, Mr. McLeod. The motion is in order. To the motion.

Question.

Question is being called. All those in favour of the motion? All those opposed? The motion is carried.

---Carried

Thank you, Madam Chair. I move that this committee recommends that the government provide a comprehensive response to this report within 120 days. Thank you, Madam Chair.

Thank you, Mr. Yakeleya. The motion is in order. To the motion.

Question.

Question is being called. All those in favour of the motion? All those opposed? The motion is carried.

---Carried

---Applause

Does committee agree that the consideration of Committee Report 5-15(5) is now concluded?

Agreed.

Committee Report 5-15(5) is concluded. What is the wish of the committee now? Mr. Lafferty.

I move to report progress, Madam Chair.

Thank you, Mr. Lafferty. The motion is in order. It’s not debatable. All those in favour? All those opposed? The motion is carried.

---Carried

The motion is carried. I will now rise and report progress.

Thank you, Mr. Speaker. Mr. Speaker, your committee has been considering Bill 15, Elections and Plebiscites Act; Bill 17, An Act to Amend the Legislative Assembly and Executive Council Act, No. 3; and Committee Report 5-15(5), and would like to report progress with 10 motions being adopted, and that Committee Report 5-15(5) is concluded, and that Bill 17 is ready for third reading, and that Bill 15 is ready for third reading, as amended. Mr. Speaker, I move that the report of Committee of the Whole be concurred with. Thank you, Mr. Speaker.

Thank you, Mrs. Groenewegen. Do we have a seconder for the motion? The honourable Member for Inuvik Twin Lakes, Mr. McLeod. The motion is in order. All those in favour? All those opposed? The motion is carried.

----Carried

Mr. Speaker, I move, seconded by the honourable Member for Deh Cho, that Bill 16, An Act to Amend the Jury Act, be read for the third time. Thank you, Mr. Speaker.

Thank you, Mr. Bell. The motion is on the floor. To the motion.

Question.

Question has been called. All those in favour? All those opposed? The motion is carried.

---Carried

Mr. Speaker, I move, seconded by the honourable Member for Mackenzie Delta, that Bill 20, An Act to Amend the Income Tax Act, be read for the third time. Thank you, Mr. Speaker.

Thank you, Mr. Roland. The motion is on the floor. To the motion.