EXPLANATORY NOTES

Clause 1 of the Bill would amend section 2 of the Workplace Health, Safety and Compensation Act to provide a new definition of "director" and "minister" and repeal the definition of "review commissioner" which is defined separately in Part II of the Act.

Clause 2 of the Bill would rename Part I of the Act and add a definition of "director" for the purposes of that Part.

Clause 3 of the Bill would amend section 5 of the Act to add a reference to return to work policies.

Clause 4 of the Bill would amend section 17 of the Act to broaden the powers of the commission to obtain relevant documents in the course of an inquiry under the Act.

Clause 5 of the Bill would amend section 19 of the Act to expand the exclusive jurisdiction of the commission to include determinations respecting labour market re-entry assessment, a worker's return to work and an employer's obligation to re-employ a worker.

Clause 6 of the Bill would repeal section 20 of the Act respecting public hearings.

Clause 7 of the Bill would add section 20.7 to the Act to provide a definition for "policy" and "review commissioner" in Part II of the Act.

Clause 8 of the Bill would amend section 26 of the Act to expand the jurisdiction of the review division to include decisions respecting return to work services and benefits and the obligations of an employer and a worker under Part VI of the Act.

Clause 9 of the Bill would add section 26.1 to the Act to provide that a review commissioner is bound by the Act, regulations and policy.

Clause 10 of the Bill would amend section 28 of the Act to provide for a 30 day time limit for requesting a review of a decision of the commission. Section 28 of the Act would also be amended to provide for an extension of that time up to one year and to require that applications for review and decisions by review commissioners identify how the commission's decision is contrary to the Act, regulations and policy. The time limit for a review commissioner to communicate his or her decision would also be shortened to 60 days.

Clause 11 of the Bill would amend section 28.1 of the Act to provide that a reconsideration of a decision shall be conducted by a review commissioner who did not make the decision under review and provide time limits for communicating a reconsideration decision.

Clause 12 of the Bill would add section 43.1 to the Act to provide for proportionate compensation where there are pre-existing or other than work-related causes for a loss of earnings or impairment.

Clause 13 of the Bill would repeal section 54.2 of the Act respecting co-operation in rehabilitation. The obligation to co-operate in an injured worker's return to work would be set out in Part IV of the Act.

Clause 14 of the Bill would repeal and substitute section 57 of the Act to provide for the duties of health care providers.

Clause 15 of the Bill would amend section 60 of the Act to establish the level of proof required for entitlement to compensation.

Clause 16 of the Bill would add section 65.1 to the Act to provide for payments to surviving dependent spouses whose benefits were terminated on or after April 17, 1985.

Clause 17 of the Bill would amend section 74 of the Act to replace references to occupation with references to employment.

Clause 18 of the Bill would amend section 74.1 of the Act to remove the requirement for an annual review of long term claims and retain the requirement for annual indexing.

Clause 19 of the Bill would revise section 77 of the Act to provide that compensation payable on the recurrence of an injury shall be based on the earnings at the time of recurrence. This clause of the Bill would also revise section 78 of the Act to eliminate the minimum compensation for injured workers and to provide for a transition for a worker in receipt of the minimum.

Clause 20 of the Bill would amend section 85 of the Act to broaden its application to health care providers.

Clause 21 of the Bill would revise Part VI of the Act to provide for a comprehensive program for the early and safe return to work of injured workers. The new Part VI would provide that employers be obligated to re-employ their injured workers in certain circumstances and permit regulations to be made respecting obligations of employers and workers engaged primarily in construction.

Clause 22 of the Bill would amend section 101 of the Act to require employers to provide information that the commission requires to determine assessments.

Clause 23 of the Bill would amend section 123 of the Act to provide for regulations to be made respecting the obligations of employers and workers under Part VI of the Act.

Clause 24 of the Bill would amend section 125 of the Act to increase the maximum penalty for an offence and to specifically create certain offences.

Clause 25 of the Bill would amend section 5 of the Occupational Health and Safety Act to expand the duties of employers in relation to recommendations from occupational health and safety committees and worker health and safety representatives and their participation in workplace inspections.

Clause 26 of the Bill would amend section 7 of the Act to require workers to co-operate with occupational health and safety committees and worker health and safety representatives in their workplaces.

Clause 27 of the Bill would add sections 36.1 and 36.2 to the Act to require employers with 10 or more workers at a workplace to have an occupational health and safety program and employers with less than 10 workers to have an occupational health and safety policy. The content of the program and policy would be provided for in the regulations.

Clause 28 of the Bill would add section 38.1 to the Act to require employers to provide and pay for training of members of the occupational health and safety committee at their workplaces.

Clause 29 of the Bill would amend section 39 of the Act to require that occupational health and safety committees participate in workplace inspections conducted by employers in accordance with the regulations.

Clause 30 of the Bill would revise section 41 of the Act to require employers with less than 10 workers at a workplace to designate and provide training to a worker health and safety representative.

Clause 31 of the Bill would amend section 65 of the Act to permit regulations to be made respecting occupational health and safety programs and policies, and requiring an employer to identify, assess and minimize the risk of prescribed injuries or diseases.

Clause 32 of the Bill would provide that subclause 5(3), clauses 8, 13, 21, 23, 24 to 30 and subclause 31(1) of this Bill shall come into force on January 1, 2002.

RSN1990 c.W-11
as amended

1. (1) Paragraph 2(1)(g) of the Workplace Health, Safety and Compensation Act is repealed and the following substituted:

(2) Paragraph 2(1)(t) of the Act is repealed and the following substituted:

(3) Paragraph 2(1)(v.1) of the Act is repealed.

2. The Act is amended by repealing the heading "PART I THE WORKERS' COMPENSATION COMMISSION" and substituting the following:

Definitions

2.1 In this Part, "director" means a member of the board of directors appointed under section 4.

3. Paragraph 5(1)(b) of the Act is amended by adding immediately after the word "rehabilitation" the words "and return to work".

4. Subsection 17(2) of the Act is repealed and the following substituted:

(2) A person acting under subsection (1) may

(3) Where a director or other person removes books, records or other documents under paragraph (2)(b), he or she shall give to the person from whom those items were taken a receipt for them and shall immediately make copies of them and return the originals to the person who was given the receipt.

5. (1) Paragraphs 19(1)(b) and (c) of the Act are amended by striking out the words "disability or".

6. Section 20 of the Act is repealed.

7. The Act is amended by adding immediately after the heading "PART II APPEALS" the following:

Definitions

20.7 In this Part

8. (1) Paragraph 26(1)(a) of the Act is repealed and the following substituted:

(2) Subsection 26(1) of the Act is amended by striking out the word "and" at the end of paragraph (c), striking out the period at the end of paragraph (d) and substituting a semi-colon and the word "and" and by adding immediately after that paragraph the following:

9. The Act is amended by adding immediately after section 26 the following:

Review commissioner bound by policy

26.1 A review commissioner shall be bound by this Act, the regulations and policy.

10. (1) Subsection 28(1) of the Act is amended by adding immediately after the figure "26(1)" a comma and the words "within 30 days of receiving the written decision of the commission".

(1.1) The chief review commissioner may accept an application after the time set in subsection (1) upon review of a written application for an extension of time by the person requesting the review, but no application for review of a decision shall be accepted beyond one year from the date the commission's decision was communicated to the person making the application.

(1.2) An application under subsection (1) shall be in writing and shall identify how the decision is contrary to this Act, regulations and policy.

(1.3) Where an application does not comply with subsection (1.2) a review commissioner shall refuse to review a matter until the applicant complies with subsection (1.2).

(1.4) Where an applicant does not comply with subsection (1.2) within 30 days of receiving notification from the review division of the non-compliance, the decision of the commission shall not be reviewed under this Part.

(3) Subsection 28(4) of the Act is repealed and the following substituted:

(4) A review commissioner to which a matter has been referred for review shall

(4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission.

(4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and

(4.3) Where a matter is referred to the commission under subsection (4.2), the review commissioner shall not review a new decision except where a new application is made under subsection (1).

(4) Subsection 28(8) of the Act is repealed and the following substituted:

(8) A review commissioner shall communicate his or her decision, with reasons, to the person seeking the review, the commission and a person who appeared or made a submission on the review, within 60 days of the date of the application for review.

11. (1) Subsection 28.1(1) of the Act is amended by striking out the words "decision of a commissioner" and substituting the words "decision of a review commissioner".

(3) The chief review commissioner shall review the application and, where he or she determines that reconsideration is appropriate, shall reconsider the decision, or order that the decision be reconsidered by another review commissioner who did not make the decision.

(4) Section 28.1 of the Act is further amended by adding immediately after subsection (3) the following:

(3.1) Where the decision to be reconsidered was made by the chief review commissioner, he or she shall refer the application to a different review commissioner who may in his or her discretion order that the decision be reconsidered, and conduct the reconsideration where one is ordered.

(5) Subsection 28.1(4) of the Act is repealed and the following substituted:

(4) A review commissioner shall communicate his or her decision, with reasons, on the application for reconsideration to the person seeking the reconsideration, the commission and a person who appeared or made a submission on the reconsideration

(4.1) Subsections 28(4.1) to (4.5) shall apply to the reconsideration process, with the necessary changes.

12. The Act is amended by adding immediately after section 43 the following:

Proportionate compensation

43.1 Notwithstanding paragraph 2(1)(o), where a worker suffers personal injury arising out of and in the course of employment that

compensation is payable for the proportion of the loss of earnings or permanent impairment that the commission determines is attributable to the injury.

13. Section 54.2 of the Act is repealed.

14. Section 57 of the Act is repealed and the following substituted:

Duties of health care provider

57. (1) A health care provider attending or consulted upon a case of injury to a worker shall provide reports in a form that may be required by the commission in respect of the injury.

(2) A health care provider in attendance upon an injured worker shall give reasonable and necessary information, advice and help to enable the worker or his or her dependents to apply for compensation and to provide proof that may be required by the commission.

15. Subsection 60(1) of the Act is repealed and the following substituted:

Proof required

60. (1) An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and where the evidence on each side of an issue is equally balanced the issue shall be decided in favour of the worker.

16. The Act is amended by adding immediately after section 65 the following:

Payment to a remarried spouse

65.1 (1) A person whose monthly allowance as a surviving dependent spouse was terminated on or after April 17, 1985 due to his or her remarriage is entitled to receive the compensation that he or she would have received had the monthly allowance not been terminated.

(2) Notwithstanding section 43, no interest shall be paid on compensation which would have been paid from April 17, 1985 to December 31, 1992.

(3) No amount shall be paid under this section to the estate of a person.

17. (1) Subsection 74(2) of the Act is amended by striking out the words "a suitable occupation" and by substituting the words "suitable employment".

(3) The commission for the purpose of subsection (2) may determine that a worker is capable of working in suitable employment and estimate the wage he or she could earn in that employment.

18. (1) Subsection 74.1(1) of the Act is repealed and the following substituted:

Compensation to be reviewed

74.1 (1) Extended earnings loss benefits being paid to a worker may be reviewed periodically by the commission.

(1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annually to his or her estimated annual earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

(2) Subsection 74.1(2) is amended by striking out the words and figure "subsection (1)" wherever they occur and substituting the word and figure "subsection (1.1)".

19. Sections 77 & 78 of the Act are repealed and the following substituted:

Recurrence

77. Where an injured worker suffers a recurrence of an injury, the compensation payable to him or her shall be based on the average weekly earnings at the time of his or her loss of earnings resulting from the recurrence of the injury, less compensation he or she is already receiving in respect of that injury.

Elimination of minimum compensation

78. (1) In this section, "former provision" means section 78 as it read before it was repealed and replaced by this section.

(2) Where a worker was in receipt of a minimum amount of extended earnings loss benefits in accordance with the former provision on the date this section comes into force, the earnings loss benefits being paid to that worker shall not be increased under subsection 74.1(1.1) until the amount of compensation being paid to that worker is equal to 80% of that worker's estimated annual earnings as adjusted by the application of the Consumer Price Index for Canada.

(3) Where a worker was in receipt of a minimum amount of earnings loss benefits other than extended earnings loss benefits in accordance with the former provision on the date this section comes into force, the earnings loss benefits being paid to that worker shall continue at the minimum amount for as long as he or she is otherwise entitled to those benefits.

(4) Where a worker referred to in subsection (3) becomes entitled to extended earnings loss benefits, subsection (2) shall apply.

20. (1) Subsection 85(2) of the Act is amended by striking out the words "doctor and attending" and by substituting the words "health care provider and".

21. Part VI of the Act is repealed and the following substituted:

Rehabilitation

88. The commission may take those measures and make those expenditures that it may in its discretion consider necessary or expedient

Duty to co-operate in return to work

89. (1) An employer shall co-operate in the early and safe return to work of a worker injured in his or her employment by,

(2) The worker shall co-operate in his or her early and safe return to work by,

(3) The commission may contact the employer and the worker to monitor their progress on returning the worker to work, to determine whether they are fulfilling their obligations to co-operate and to determine whether any assistance is required to facilitate the worker's return to work.

(4) The employer or the worker shall notify the commission of any difficulty or dispute concerning their co-operation with each other in the worker's early and safe return to work.

(5) The commission shall attempt to resolve the dispute through mediation and, if mediation is not successful, shall decide the matter within 60 days after receiving the notice or within the longer period that the commission may determine.

(6) Where mediation is provided under this section, the mediator shall not participate in a hearing or proceeding in relation to the subject of the mediation without the consent of the parties to the hearing or proceeding.

(7) Where the commission determines that a worker has failed to comply with this section, the commission may suspend, reduce or terminate the worker's compensation.

(8) Where the commission determines that an employer has failed to comply with this section, the commission may levy a penalty on the employer not exceeding the cost to the commission of providing benefits, return to work and rehabilitation services to the worker while the non-compliance continues.

(9) A penalty payable under subsection (8) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

Obligation to re-employ

89.1 (1) An employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

(2) This section applies only to an employer and a worker who had been in an employment relationship for a continuous period of one year immediately prior to the date of the worker's injury.

(3) This section does not apply to an employer who regularly employs fewer than 20 workers.

(4) The commission may determine the following matters on its own initiative or shall determine them if a worker and an employer disagree about the fitness of the worker to return to work:

(5) When a worker is medically able to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall,

(6) When a worker is medically able to perform suitable work but is unable to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

(7) An employer to whom this section applies shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

(8) An employer is obligated under this section until the earliest of,

(9) Where an employer re-employs a worker in accordance with this section and then terminates the employment within 6 months, the employer is presumed not to have fulfilled the employer's obligations under this section.

(10) An employer may rebut the presumption in subsection (9) by showing that the termination of the worker's employment was not related to the injury.

(11) Upon the request of a worker or on its own initiative, the commission shall determine whether an employer has fulfilled the employer's obligations to the worker under this section.

(12) The commission is not required to consider a request under subsection (11) by a worker who has been re-employed and whose employment is terminated within 6 months where the request is made more than 3 months after the date of termination of employment.

(13) Where the commission decides that an employer has not fulfilled the employer's obligations to a worker, the commission may,

(14) A penalty payable under subsection (13) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

(15) Where this section conflicts with a collective agreement that is binding upon an employer, and the employer's obligations under this section give a worker greater re-employment terms than does the collective agreement, this section prevails over the collective agreement.

(16) Subsection (15) shall not operate to displace the seniority provisions of a collective agreement.

(17) This section shall only apply in respect of an injury to a worker which occurs on or after January 1, 2002.

Labour market re-entry assessment and plan

89.2 (1) The commission shall provide a worker with a labour market re-entry assessment where

(2) The commission shall determine, after reviewing the results of an assessment, whether a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury, and shall determine the employment that is suitable for the worker.

(3) Where the commission determines that a worker requires a labour market re-entry plan, the commission shall arrange for a plan to be prepared for the worker.

(4) A labour market re-entry plan shall be prepared in consultation with

(5) A plan shall contain the steps necessary to enable a worker to re-enter the labour market in the employment that is suitable for the worker.

(6) A worker shall co-operate in all aspects of a labour market re-entry assessment or plan provided to the worker.

(7) The commission shall pay the expenses related to a labour market re-entry assessment and plan that the commission considers appropriate to enable the worker to re-enter the labour market.

(8) Where a worker was injured prior to January 1, 2002 and has received services under section 89 as it read prior to January 1, 2002, the worker shall not be entitled to a labour market re-entry assessment or plan except where the commission considers it appropriate.

Provision of information

89.3 (1) Where a worker or a worker's employer requests, a health care provider shall give the commission, the worker and the employer information concerning the worker's functional abilities on the form that may be required by the commission.

(2) The commission shall pay a health care provider for providing information under this section and shall fix the fee to be paid.

(3) A person who receives the information in subsection (1) on behalf of an employer shall not disclose that information except to a person who is assisting the employer in returning the worker to work.

Construction industry

89.4 (1) Sections 89 and 89.1 shall not apply to a worker who performs construction work and to an employer who is engaged primarily in construction in respect of those of his or her workers who perform construction work.

(2) Notwithstanding subsection (1), a worker who performs construction work and an employer who is engaged primarily in construction shall be required to comply with the requirements respecting the duty to co-operate and the re-employment of those workers that may be prescribed in regulations made under section 123.

22. Subsection 101(2) of the Act is amended by striking out the word "and" at the end of paragraph (b), by striking out the period at the end of paragraph (c) and substituting a semi-colon and the word "and" and by adding immediately after that paragraph the following:

23. Section 123 of the Act is amended by adding immediately after subsection (2) the following:

(2.1) The commission may, with the approval of the Lieutenant-Governor in Council, make regulations

24. Subsections 125(1) and (2) of the Act are repealed and the following substituted:

Offence

125. (1) A person who

is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000 or to imprisonment for a term of not more than 6 months, or to both.

(2) Where a person is convicted of an offence under this section, the court may, in addition to the fine and a penalty imposed under this Act and the regulations, order the person to repay to the commission money obtained or retained by that person as a result of the commission of the offence.

(2.1) An order made under subsection (2) may be registered as a notice of judgment under the Judgment Enforcement Act.

(2.2) Nothing in this section affects the right of the commission to obtain a civil remedy in respect of the offence, including proceedings under section 83.1.

RSN1990 cO-3
as amended

25. Paragraph 5(f) of the Occupational Health and Safety Act is repealed and the following substituted:

26. Paragraph 7(b) of the Act is repealed and the following substituted:

27. The Act is amended by adding immediately after section 36 the following:

Health and safety program

36.1 (1) Where 10 or more workers are employed at a workplace, the employer shall establish and maintain an occupational health and safety program in accordance with the regulations.

(2) An occupational health and safety program shall be established in consultation with the occupational health and safety committee or the worker health and safety representative at the workplace.

(3) An occupational health and safety program shall include those documents that may be prescribed in the regulations.

(4) An occupational health and safety program shall be in writing and shall, when requested, be provided to the occupational health and safety committee, the worker health and safety representative, a worker at the workplace and an officer.

Health and safety policy

36.2 (1) Where less than 10 workers are employed at a workplace, the employer shall establish an occupational health and safety policy in accordance with the regulations.

(2) An occupational health and safety policy shall be established in consultation with the worker health and safety representative and posted in a prominent place at the workplace.

28. The Act is amended by adding immediately after section 38 the following:

Committee training

38.1 (1) Where 50 or more workers are employed at a workplace, the employer shall provide and pay for training for the members of the occupational health and safety committee at the workplace.

(2) Where 10 to 49 workers are employed at a workplace, the employer shall provide and pay for training for the co-chairpersons of the occupational health and safety committee at the workplace.

(3) The training provided under subsections (1) and (2) shall meet the requirements the Workplace Health, Safety and Compensation Commission may set.

(4) A member of the committee who is provided training under subsection (1) or (2) shall participate in the training.

(5) An employer shall compensate a worker for participating in training under this section as if the training were regular work.

29. Section 39 of the Act is amended by adding immediately after paragraph (a) the following:

30. Section 41 of the Act is repealed and the following substituted:

Worker representative

41. (1) Where less than 10 workers are employed at a workplace, the employer shall ensure that a worker not connected with the management of the workplace is designated as the worker health and safety representative to monitor the health, safety and welfare of workers employed at the workplace.

(2) The employer shall provide and pay for training for the worker health and safety representative.

(3) The training provided under subsection (1) shall meet the requirements the Workplace Health Safety and Compensation Commission may set.

(4) The worker health and safety representative shall participate in the training provided under this section.

(5) An employer shall compensate a worker for participating in training under this section as if the training were regular work.

31. (1) Subsection 65(1) of the Act is amended by adding immediately after paragraph (b) the following:

(2) Subsection 65(1) of the Act is amended by adding immediately after paragraph (o) the following:

Commencement

32. Subsection 5(3), sections 8, 13, 21, 23, 24 to 30 and subsection 31(1) of this Act shall come into force on January 1, 2002.