In 2002, the provincial government amended the Workers害羞草研究所� Compensation Act to make things more difficult for injured workers to be compensated for their workplace injuries.
Earlier this year, B.C.害羞草研究所檚 was amended.
Significantly, the legislation now acknowledges the Workers害羞草研究所� Compensation Appeal Tribunal (WCAT)害羞草研究所檚 power to interpret the .
Challenging the WCB
B.C. WCB (also called WorksafeBC) decisions frequently ignore medical evidence and lack a rationale.
A rsystem stated:
At its extreme, it is a toxic decision-making culture if a claim owner 害羞草研究所� does not seek/consider/weigh evidence of individual circumstances and then say 害羞草研究所渋f you don害羞草研究所檛 like it, appeal害羞草研究所�. At its barest, the first level decision maker does not apply, or seek to apply, the 害羞草研究所渕erits and justice害羞草研究所� of the case. 害羞草研究所�
Appeals require time and resources that injured workers often do not have and should
not be required to have in order to get compensation. For many stakeholders the issue
becomes - how much justice can you afford? Given the rigors of an appeal process, many
workers, and employers, live unhappily with 害羞草研究所渁verage justice害羞草研究所�, which in their particular cases,
does not feel like justice at all.
A case manager may make numerous decisions, each of which must be appealed individually, with different review, appeal, reconsideration and judicial review deadlines. Soon, the result is a web of decisions, reviews, appeals and reconsiderations. It is enough to weaken those of the strongest fortitude.
Recently, in , the British Columbia Supreme Court observed:
The process is a lengthy, complex and inefficient one, which is striking when considered in contrast to the lofty goal of compensating injured workers fairly in a timely and efficient manner, seemingly established by the Act害羞草研究所�
In 2016, in, the court stated:
While these separate inquiries may be logical, the fact remain that, in combination, the overall scheme is unwieldy, inefficient, and cumbersome. This is particularly so when one considers that the Act is intended to serve injured workers. 害羞草研究所�
There is much discussion and concern in the current case law about access to justice, judicial efficiency, proportionality, and like issues害羞草研究所�. These important objects should apply with equal force to administrative bodies. Accordingly, they apply to the Act and to the decision-making process under the Act. Those decision-making processes 害羞草研究所ppear to do little to advance these various objects.
In the words of the :
The internal appeal and review provisions of the Workers Compensation Act are convoluted, and in some respects bizarre.
Other cases have referred to the process as 害羞草研究所渓ong and convoluted,害羞草研究所� 害羞草研究所渢ortured害羞草研究所� and a 害羞草研究所渓egal playground.害羞草研究所�
Many injured workers are unable to navigate this convoluted system without a lawyer. The WCB does not compensate injured workers for legal fees.
One key problem is that the WCB will not compensate for it害羞草研究所檚 own poor handling of claims.
So, after years of fighting, even if an injured worker receives the compensation he or she was originally entitled to, there is no compensation for the trauma involved in battling the WCB. There is no compensation for being left in poverty in the meantime.
Another problem is that in recent years, the WCB does not generally pay interest. So, the Board has an economic incentive to delay benefits.
The Ultimate Law
In recent years, challenging the WCB under the Canadian Charter of Rights and Freedoms was an almost impossible feat.
The Board害羞草研究所檚 Review Division apparently had the power to interpret the Charter. However, it rarely if ever did so meaningfully. Also, a challenge to the Review Division is the first step in the appeal process. At this early stage, Charter violations may not be yet apparent.
By the time the worker got to WCAT, the violation may be apparent, but based on the previous 245.1(q) of the legislation, WCAT would not hear Charter issues.
If the injured worker attempted to raise Charter issues for the first time in court, the court would very likely refuse to hear it.
This is what happened in and .
This all means that in recent years, the WCB was essentially insulated from Charter challenges.
It was only a matter of time before someone challenged the previous s. 245.1(q) as being unconstitutional.
Former S. 245.1 Repealed
Scrutinizing the WCB under the Charter creates the potential that problematic policies may be declared of no force and effect.
There is also the potential that those who have suffered may seek compensation for the harm the WCB has caused them, through an award of damages under the Charter.
We can only hope that WCAT will meaningfully grapple with these challenges, and truly scrutinize the WCB. It is time to end the madness entailed in B.C.害羞草研究所檚 worker compensation system.
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About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people害羞草研究所檚 lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada害羞草研究所檚 oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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