Debates of August 21, 2007 (day 14)

Mr. Chairman, my apologies. I move that subclause 65(15) of Bill 6 be renumbered as subclause 65(14).

Yay!

Thank you, Mrs. Groenewegen. The motion is in order. To the motion.

Question.

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

---Carried

Thank you, committee. To clause 65, as amended.

Agreed.

That left us on page 48, clause 71 and 72.

Agreed.

Page 49, clause 73, clause 74 and clause 75.

Agreed.

Page 50, clause 76, clause 77, clause 78 and clause 79.

Agreed.

Page 51, clause 80.

Agreed.

Page 52, clause 81 and clause 82.

Agreed.

Page 53, clause 83 and clause 84.

Agreed.

Page 54, clause 85 and clause 86.

Agreed.

Page 55, clause 87, clause 88, clause 89, clause 90 and clause 91. Ms. Lee. Thank you, Ms. Lee. Which clause? Thank you, Ms. Lee. Committee has agreed to clause 91. Committee, we will go to page 57, clause 92. Ms. Lee.

Thank you, Mr. Chairman. I have a question on clause 92 which deals with the presumption in favour of injured workers and this is a very important and often controversial component of the workers’ compensation legislative system. I know the workers who go through the claim process, some of them feel that they’re not always treated with the presumption in favour of them as injured workers, and probably the workers in the system don’t agree. Anyway, I would like to ask the Minister how this section will be different than what was in place prior to this legislation in a specific term. I don’t need it to be so opened-ended. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Thank you, Mr. Chairman. Mr. Chairman, with regard to improving the wording in legislation and making it easier to understand, I think that this clause in there definitely states that in regards to reviewing an individual’s case, you should consider looking at it in light of the hearing from the client but, more importantly, prescribing to be in favour of the client ensuring that when reviewing those cases you are, hopefully, improving this legislation and the wording. The wording that was there previously was somewhat similar but this goes just a little further, so it is an improvement for what the wording was there before. I think with that we’re hoping it will improve our ability to process with that individual’s claims.

Thank you, Mr. Krutko. Ms. Lee.

Further to that, Mr. Chairman, I think we have an important section that we added to which is section 1.1, the purpose of this act, which was intentional inclusion and it says "The purpose of this act is to establish an open, fair and comprehensive system of compulsory no-fault mutual insurance for workers and employers," and it has five subsections that we, as Members, wanted to add into it to state and articulate how we would like to see this legislation implemented and followed in practice. I was hoping the Minister would say that this section 92 will be read and interpreted in the context of that purpose clause. So I’d like to ask the Minister if that would be possible in their implementation of this legislation. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Thank you, Mr. Chairman. In regards to the preamble and the intent of the legislation, I think the Member is correct. I mean when we have the insurance system that we do have and basically it is a no-fault insurance and you try to err on the caution by way of trying to assist workers so we don’t find ourselves in the predicament of having to go to court every time we want to settle a case. I think in regards to the preamble, it has been implemented and the change in regards to the statement is, hopefully, going to be consistent all the way through. I think with the changes that we are making, it is an improvement. I think by improving that, we are improving the system for injured workers to make it clearer and more precise to how we’re trying to resolve their cases. I think this is an improvement and it does fall in line with the preamble in the general statement that is in the front of the bill.

Thank you, Minister Krutko. Anything further, Ms. Lee.

Could I get the Minister to commit that section 92 will be read in context of section 1.1? Thank you.

Thank you, Ms. Lee. Minister Krutko.

Yes, Mr. Chairman. I will commit to that.

Thank you, Minister Krutko. Thank you, committee. We’re on clause 92. Ms. Lee.

Thank you, Mr. Chairman. Further to that then, section 92, subsection (2), subsection (b), reads that, and I quote, "draw all reasonable inferences and presumptions in favour of the claimant when determining any matter related to compensation." Now, when you read that from a layperson’s point of view, workers have every right to feel that when you’re injured, you go through a claim process right away from the beginning that your case will be dealt with with presumption in favour of you as an injured worker. I’m not sure if that has always been the case and the workers that have come into our lives will tell you that that hasn’t been the case. So I would like to know, and from listening to the people who are in the workers’ compensation field, I understand that the way this has been interpreted throughout the case law history is that that presumption only kicks in when there is sort of a tie in the medical evidence or situation. Whereas, you know, from a layperson who walks in, they say that every step of the way presumption will be in favour of the worker, not a situation where it kicks in only when necessary, you know, kicks in as a default system. It should be always prevalent, present and the overarching operating principle. So I want to ask the Minister to give me a commitment that, in fact, with the inclusion of section 1.1, which was very intentional on the part of this Assembly and really clearly states what we want to accomplish under this legislation, that there be a direction to the board in interpreting this clause that presumption of reasonable inference in favour of the worker has to kick in from the beginning, throughout the process to the end and not just when it’s necessary and it’s determined to be necessary by the process. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Thank you. I’ll refer the question to Mr. Wright.

The Member is correct that this provision, section 92(2)(b)…

Thank you, Mr. Wright. I just have to acknowledge you first. Thank you, Mr. Minister. Mr. Wright.

I apologize. The Member is correct that section 92(2)(b) has been in the legislation previously. In fact, it’s in the present legislation in section 7(4) and it’s a consistent provision throughout workers’ compensation legislation throughout Canada. I think I differ with Ms. Lee if she’s saying that it only kicks into place when there’s a tie. I think that the way I would describe it is that the normal rule, if you’re talking about a court proceeding, is you have to prove something on the balance of probabilities and what this section is saying is that if it’s equally likely that one set of affairs is possible as opposed to the other, that the worker gets the benefit. So if it’s 50/50 as opposed to 51/49, the worker gets the benefit of that. That rule exists all the time throughout any matter where compensation is an issue, which is what this section says. That’s the way that’s been interpreted throughout Canada.

Thank you, Mr. Wright. Ms. Lee.

Thank you, Mr. Chairman. I do appreciate that we have to go against sort of the established machinery of that case law interpretation, but in his legal opinion, would section 1.1 make any difference whatsoever in interpreting that clause that’s interpreted that way everywhere over time? Can we do anything differently here? Are we doing anything differently because of that? Thank you.

Thank you, Ms. Lee. We are on clause 92, not clause 1.1; however, I will allow the question as it does relate somewhat to this clause. Mr. Wright.

I think, if the Member looks at 1.1(c), the principle that’s expressed is that the compensation system will treat workers and claimants fairly, compassionately and respectfully. That’s consistent with section 92(2)(b), which says that you don’t have to…I mean the effect of it is that if the worker can’t prove that what he’s trying to establish is more likely than not, then he or she gets that benefit. As long as it’s 50/50, and that’s consistent with the principle in section 1.1(c), which is treating workers compassionately and fairly. You’re saying if you can’t disprove what the worker’s saying, then the worker gets the benefit.

Thank you, Mr. Wright. Anything further, Ms. Lee?

Thank you. Just a short one. Could I get the Minister to ask the, refer the matter, or however you want to put it, could I get the Minister to commit to having the government’s counsel look at section 92(2)(b) in the context of section 1.1, as Mr. Wright just stated? Thank you.

Thank you, Ms. Lee. Mr. Minister.

Well, I can do that but they’ve probably already done it. So I think unless we have the legislation…(inaudible)…once the legislation is there, they’ll have to enforce it.

Thank you, Mr. Minister. Clause 92. Committee.

Agreed.