WE HAVE A RIGHT TO SPEAK AND BE PART OF A GROUP!

WE AS INDIVIDUAL CANADIANS, HAVE A CONSTITUTIOANL RIGHT TO 
TO SPEAK AND BE PART OF A GROUP! 

I recently received an e-mail from a fellow injured worker. In their response, they had apologized for contacting me, and asking questions. They did this knowing I have been recently extremely busy fighting against the WCB/WCAT corruption in Canada. Regardless, one should never apologize nor be afraid to ask questions.

To this I replied. I also wanted you all to know what I had said to them...

Please never apologize for asking questions. I was raised that you learn from asking questions. I just wish I could spend all the time I would like to speak with everyone and most importantly help everyone. I do believe, in time, I might be able to do just that. I believe the best way to achieve this goal is in two simple steps. To first help myself and then secondly, to help others help themselves & help others.

First, in order to help myself, I need to ensure I am able to provide for myself and my daughter. To do this I must first win my own reconsideration appeal with Ontario’s WSIAT. Since, my first appeal to the WSIAT, in 2007, I have learned a little about the law, our rights, and most of all, the proper way in presenting an appeal to a board/tribunal/commissions, or most commonly, challenging an appeal by asking for a reconsideration of an appeal decision. A decision that was made by that board/tribunal/commission. However, to teach others, I first must be successful in my own matter. Simply put, if I can not provide for myself and my daughter than I am of no use to others!

Second, is after helping myself I can then work on helping others. I believe this is best done by trying to encourage others to stand up and fight for themselves, or with individuals like yourself, to have a renewed fight for themselves and others. To most importantly understand how they can win their case. Then to teach them to fight for others and teach others to do the same.

For example, in a very small way I was able to encourage a few injured workers in Manitoba to come together and maybe one day form a provincial injured worker group. I recently heard that the Canadian Injured Worker Alliance - CIWA is working to help these individuals come together to form a provincial group. As I said to one of the individuals in Manitoba, I want, nor do I take no credit for this. This is because I have no interest in taking any credit. All I want to do is to 

“piss off the WSIB & the WSIAT and all WCBs and WCATs everywhere!” 

It is funny, as this exact statement was quoted by the WSIB and the WSIAT in their Case Conference Brief to the Court. You can see the WSIB/WSIAT's case conference brief by clicking here. My quote is located at paragraph 6. 

Many others would be fearful of being so closely monitored by a government agency, such as Ontario’s WSIB (Ontario's workers compensation board). At times, I must admit, I do worry I maybe, one day, wrongly persecuted by Ontario’s WSIB, or another Ontario government agency. Much like, so many other individuals whose only crime was to be injured or made ill by their employer’s workplace. This fear in Ontario is genuine, as the WSIB routinely persecutes injured workers. This was proven when the Ontario Court of Appeal dismissed three cases the WSIB was trying to persecute. I had the privilege of observing from the public gallery, when the main judge uttered the words, 

"Is it not enough you took their benefits away, you have to charge them as well?"

What most concerned me as an observer to these three appeals, is that in all three, not once did I ever mention the WSIB referencing medical evidence the injured workers were in fact fully recovered or much improved as the WSIB alleged.  In EVERY case the WSIB used, in legal circles what is known as lay witnesses. These are witnesses who are NOT experts, but are provided expert opinions. Opinions that are NOT based on years of education, training, and professional reputation, but instead their personal opinions. 

I, nor can any others, let this fear stop us from our pursuit of justice for individuals whose only crime was being hurt or made ill by their employer’s workplace.      

Many may say this is a petty reason and it is morally wrong. I disagree. This is because I take no pleasure in the workers compensation boards/tribunals/commissions  displeasure from me righting their moral wrongs! I also believe it is a very good motivator for me.

Let’s not forget that on many occasions Ontario's WSIB and the WSIAT have actually taken person pleasure in the harm they have caused me and my daughter!

As part of my appeal process, I am working to provide irrefutable evidence to the public. Evidence, which confirms a WSIAT tribunal panel member is heard laughing at me. This is after she had provided me with unsolicited legal advice during the hearing. Legal advice, which I, like any person in a similar position would feel compelled to follow. This is simply because she was a decision maker who was deciding the fate of my case. I like any other person would not want to upset them in anyway and would follow their instructions, or more accurately legal advice. Even if I really did not want to. Legal advice, I add, that was not only wrong but was not allowed to be provided to me by a decision maker of the tribunal. According to the tribunal's own rules of conduct for panel members and most importantly, the Rule of Law. Specifically, provide the right to all parties in a proceeding to have an impartial decision maker.

Ironically, having the behaviour of taking pleasure, laughing at another after causing them great harm, as the panel member did to me and my daughter, is something I learned in a philosophy of law class at university, is the legal definition of pure evil.

So, if the Ontario WSIB and WSIAT have acted with evil intentions towards me and my daughter I ask you, why can I not make their life just a little difficult too?

Many would say it is vengeance and thus morally wrong. However, unlike the WSIB and the WSIAT, I take no pleasure in their discomfort, I only take pleasure in knowing that someday justice will be provided to all individuals in Canada and elsewhere, including and especially those individuals whose only crime was being injured or made ill from their employer’s workplace.

I hope you and others take inspiration in my determination to fight for justice and develop a fight or renewed fight, as well as to encourage others to do the same.

I close with this thought... 

Most individuals, whose only crime was being injured or made ill by their employer’s workplace, fear acts of reprisal and retaliation for simply speaking out or simply being part of or even attending an injured worker group. They should and must not. This is because as Canadians we all have Constitutionally protected Charter Rights. These rights generally sit above all laws in Canada. I say generally, as these rights can be taken away by a judge, by a Legislature, or by Parliament. This is referenced within sections 1 and 33 of the Charter.

One of these specific rights individuals are guaranteed is the right to Freedom of Expression. This includes the right to freedom of speech, which is stated within section 2(b)of the Charter.
I caution that one has the right to free speech, so long as the speech they utter is not making a false statement and/or the speech does not involve hate speech.

Another one of these specific rights is the right to Freedom of Association. This includes the forming of and being a member of a group. Most importantly not to be punished in any way, as a result of forming and being part of that group. This is stated within section 2(c) of the Charter.
I caution that one has the right to freedom of association, so long as the group or association to the group does not promote, or cause to occur hatred, violence, or harm of others.     

Even saying that one has rights, which are guaranteed above all other laws, countless individuals still fear acts of reprisal and retaliation from workers compensation boards, tribunals/commissions. Moreover, they also fear acts of reprisal and retaliation from their employers.

Countless individuals still fear acts of reprisal and retaliation from workers compensation boards, tribunals/commissions. Moreover, they also fear acts of reprisal and retaliation from their employers! 

Sadly, there is no Constitutional protection from employers/business for violating our Charter Rights.
A clear intentional flaw within our Constitution!  

In the cases where individuals who have genuine fear from acts of reprisal and retaliation, I suggest they can do like Canada’s workers compensation boards/tribunals/commissions do, that is act in the shadows.

Some examples are:

·        When attending in-person meetings, seminars, and events, such as injured worker protest rallies and marches, these individuals can wear face masks and sunglasses to protect their right to their privacy by preventing being wrongly persecuted.  

 ·        When doing things online, like posting online comments, such as the harsh and inhumane treatment by their employers, the workers compensation boards/tribunals/commissions regarding their forced return to work programs, they can,

 o   Consider setting up and using a different online account;

o   Consider setting up and using a separate e-mail account;

o   Consider using strong anti-virus, firewall and most importantly VPN (Virtual private network) software to fully protect your privacy while you are online;

o   When attending ZOOM meetings change your name to an alias; never provide personal details when attending an online meeting like ZOOM, and

 o  There are also many other ways as well you can find out by searching on the internet.  

·  Most importantly NEVER invoke harm or violence of any kind to ANYONE! This will guarantee, get the attention of law enforcement and cause serious harm to the overall movement.
Even though, the workers compensation boards/tribunals/commissions intentionally harmed us, let’s show them we are better than them and wish them no harm!

Let’s never forget that we are not just injured workers or individuals, but we are Canadians and as such we have rights! That our rights are only ever protected so long as we fight within the system to protect them, ourselves!  

I hope you and others are inspired to join or rejoin
the fight for justice for injured workers!

Insult to Injury for Victims of Rape!

 

Recently, I came across a Blog post entitled No Right to SueEmployer for Sexual Assault by Co-Worker: WSIAT. The Blog is called Labour Pains is written by a Sean Bawden an Ottawa Employment law lawyer and has received several awards for his Blogs. 

The Blog post discussed a case that went before Ontario’s workers compensation appeals tribunal, now known as the Workplace Safety & Insurance Appeals Tribunal - WSIAT. The case was regarding a right to sue issue. A right to sue issue occurs when a worker attempts to sue an employer. The employer or worker can then go to the WSIAT for a ruling by the WSIAT. The ruling will determine whether the worker’s civil claim against the employer is barred by the Historic Trad-off. 

Side Point: Historic Trade-off
I want to take a moment and divert from the main story. I want to discuss the Historic Trade-off and explore it a bit more. This is so you understand what it means, and its significance to the main story of this Blog.

The Historic Trade-off also known as the Historic Compromise, is a legal doctrine that states, workers, when injured/made ill at work have a right to workers compensation. In return for that right, workers lost the right to sue their employers for their injuries as a result of the employer’s workplace. 

The Historic Trade-off is embodied in workers compensation legislation across the country. In the case at bar, for example in Ontario, the Historic Trade-off is stated in section 26 of the Workplace Safety & Insurance Act. The section of law prevents a worker from suing their employer for their injuries/illness as a result of their employer’s workplace. In return, the legislation states a worker is entitled, or provided a right to workers compensation.

However, workers MUST know that the Historic Trade-off does NOT apply to all workers and employers. There are several exceptions, such as: 

• whether your employer is NOT covered by workers compensation, this maybe less than 20 employees; 
• being involved in motor vehicle accident, while working; 
• being a worker of a Schedule 2 employer and being injured by the conduct of a Schedule 1 employer or a worker of a Schedule 1 employer;
• conduct of the employer/workers resulting in workplace harassment (see Morningstar v. WSIAT for clarity on this issue.); and
• others rare cases.

It is always best to NEVER ASSUME and to seek proper legal guidance before taking any action after an accident, signing anything, or agreeing to anything.   

In studying the history of workers compensation, which encompassed the periods well before 1896’s first law to recognize injured workers, and then to the Meredith’s reports and the famous Meredith Principles. This led to the real purpose of workers compensation was NOT to force injured and disabled workers back to work, but to prevent workers, when injured or ill as a result of their employer’s workplace from ultimately becoming a financial burden to their families and most importantly from becoming a financial burden on taxpayers. 

The real purpose of workers compensation is to prevent workers, when injured or made ill, by their employer’s workplace, from becoming a financial burden on taxpayers!

The Historic Trade-off has become the Historic Rip-off
While, I agree with the concept and real purpose of workers compensation, I believe the Historic Trade-off has been severely compromised, or more accurately been intentionally breached by government. By this I mean that in order to claim there is an agreement or arrangement between two parties, both sides must benefit in someway, or there is no agreement. With workers compensation, there was a mutual benefit.

Workers benefit was they were given a right to workers compensation. Employers benefit was they were no longer sued! 

Overtime the compromise has become a rip-off. Where employers are protected from lawsuits, yet workers have no right to workers compensation. In this current case only one fully benefits.

For example, in Ontario, prior to 1990, injured workers were provided the right to workers compensation for as long as their disability lasted. However, in 1990, the Ontario government changed the workers compensation legislation. This was a devastating and dramatic blow to injured workers. It was devastating because the legislation moved away from one of the key principles of the historic trade-off. It removed the right for workers to receive workers compensation for as long as their disability lasts. It also provided that workers when injured must accept work from their employer while they were still injured.

Then in 1998, a new tougher workers compensation law took effect in Ontario. It mandated that workers when injured must return to work. The purpose of the workers compensation law dramatically changed to getting workers back to work and being fiscally responsible, over caring for workers. This meant that when workers were injured, they must co-operate in a return-to-work program. While the legislation makes clear the work must be safe and suitable for the worker, in the majority of cases the work was neither safe nor suitable. Moreover, the legislation never provided any protections for the worker to refuse unsafe & unsuitable work or any punishment to the WSIB or the employers when the the work was found to be unsafe & unsuitable. If there is no accountability how can anyone trust the word of the WSIB the work is safe and suitable. Often times, workers were/are starved into performing unsafe and unsuitable work.

Moreover, the WSIB, implemented further severe austerity measures in 2010, one of which was covertly declaring all workers can work and none are ever to be declared unemployable.

The WSIB has used many unlawful and immoral tactics to force workers back to work. For example:

The WSIB and employers refer to the return-to-work program as a “Modified Work Program” as opposed to early return to safe and suitable work. The WSIB and employers alike remove the words safe and suitable. The reasoning is that if a worker raises issues of the work offered. Then the employer or WSIB states, the work has been modified for the workers restrictions. The purpose is to intentionally & knowingly mislead the worker not to raise concerns based on the work offer as being unsafe and/or unsuitable. 

The WSIB and employers also state what a worker’s restrictions are. That being, what the worker cannot do because of their injuries. Often the WSIB and employers intentionally leave off any consideration for other disabilities the worker has, whether work related or not. This is extremely misleading and clearly intentional in nature. This is because while a worker is an injured worker, they are also a person with disabilities and as such under the Human Rights Code have a right to accommodation for their disabilities whether work related or not, whether accepted by the WSIB or not.

The WSIB and employer, when dealing with health professionals demand objective medical findings when the health professional is to declare a worker unable to work. This is contrary to common law on dealing with experts who, by the virtue of them being experts are expected to provide subjective evidence. First, let me explain the difference between objective and subjective. Simply put, objective is to say, “it is minus ten outside.” Subjective is to say, “it is dam cold outside”. Now in legal proceedings lay witnesses are not normally allowed to provide opinions. They are only allowed to provide testimony of what they observed, saw, heard, felt. However, the exception is that when an expert is to testify, they are, by virtue experts and rely on their expertise to give their opinions, or subjective evidence. The WSIB often not only demands objective evidence from the doctors but challenges their expert qualifications. The WSIB will then harass and bully the health professional to change their position, which is without question illegal, but hey it’s the WSIB who is going to stop them?

The previous example was often seen when a worker has the health professional complete the WSIB functional abilities form. Now, currently the functional abilities form recognizes that a health professional is an expert and as such relies on their subjective evidence, being their opinion.

(Click image to download PDF copy)

Click here to download the complete FA Form.

As you can see on page three of the functional abilities form, in part D, question number 2. It asks about the worker’s ability to return to work. It provides the health professional three options:

1. If a worker can return to work with no restrictions,


2. If the worker can return to work with restrictions, and
   then the health professional is to complete section E, which identifies the worker's restrictions and complete section F.


3. If the worker is not able to return to work.
   Which I have circled in the above form, and clearly states that the “Patient is physically unable to return to work at this time. Complete section F”.

When a health professional checks the third option and does not complete section E, often employers and the WSIB will demand the health professionals to complete section E contrary to exactly what the functional abilities form asks. Alternatively, the WSIB will demand more information. 

In effect, grilling the health professional to agree the worker can return to some work. The health professional will then be forced to include the activities of the worker while at home. The WSIB and the employer will then say oh look see, see, the worker is not dead, so the worker can do some work. 

It should also be important to note that the form does not include: 

• home activities; 
• other disabilities/injuries, whether accepted or not by the WSIB; 
• the impact of and side effects of medications; 
• the impact on the travel to & from work;
• the overall impact of returning to work on the worker and their injuries; 
• and other factors that doctors must consider when advising you to perform activities with an injury (ies)/illness.  

Often healthcare professionals will not say a person can not drive a car and leave it up to the individual. The healthcare professional's concern is they would limit the worker's ability to get around. It is important to point out if one can drive for say a few minutes as opposed to hours on end. Another important point about medications and driving is that if it is impairing the WSIB nor the Employer can force a worker to drive. To do so would be clearly criminal harassment. Break the law and drive impaired or else!    

Another example of the WSIB covert conduct of forcing workers back to unsafe and unsuitable work is the WSIB latest Health Professional's Progress Report form 26. 

Click the image to download a PDF copy 

Within the form it provides under section 1 three options, but notice how the options are worded, so as to lead the health professional no choice but to force the worker back to work, even when the work is unsafe and unsuitable for the worker. 

Within the form it provides under section 1 three options:

1. The worker can resume regular duties, 
   It asks for the start date and if graduated hours are required.
   Graduated hours are when a worker returns to work and first days or weeks it is say 3 then following week is 4 and so on increasing back to the full workday of 8 hours.


2. The worker can begin “Modified” duties, and
   It again asks for the start date and if graduated hours are required.


3. The third option is not titled.
   It just states pain should not be the only medical restriction. Is there any other reason this worker can not return to work at this time? It also asks for details and an expected return to work date.

Again, notice how the options are worded. So, as to lead the health professional no choice but to force the worker back to work. Even when the work is unsafe and unsuitable for the worker. It is also interesting how the WSIB does not use any title for the third option. So as to clearly imply not returning to work is NOT an option for the health professional to choose.   

What happens when injured workers return to work and are injured or killed?
I have no doubt that workers have been re-injured, suffered new injuries, or worst yet died as a result of this draconian return to work program. That was all a direct result of the manipulative conduct on the part of the WSIB with injured workers and healthcare professionals. I myself have proven two new injuries as a result of being forced back to work on countless times by the WSIB. One occurred days after being forced to the employer's so called modified worker program!

As such, I have started to investigate it more deeply. By this I mean I have sent a freedom of information request to the WSIB. This is to request the following:

• The number of injured workers who have been re-injured, in what the WSIB has declared as safe and suitable work;


• The number of injured workers who have suffered new work injuries, in what the WSIB has declared as safe and suitable work; and


• The number of injured workers who have died, in what the WSIB has declared as safe and suitable work.

I have no doubt the WSIB's response will be much the same as my last freedom of information request. This was where I had asked for the total dollar amount the WSIB had spent to advertise the WSIB's $1.5 Billion rebate program to employers. An easy answer... one would think. The WSIB provided invoices and redacted all the dollar amounts citing privacy.    

I have no doubt the WSIB’s conduct, and practices are not just limited to Ontario. That it is similar in many other jurisdictions within in Canada.

Back to the main story:
While my explanations of the historic trade-off, its loss, and the forced return to work may have seemed lengthy, there was a purpose to this main story.  

In this case, discussed in the Blog post, the outcome was that the WSIAT had determined that a worker cannot sue an employer if the worker was raped by a co-worker, or more accurately the employer/owner of the business. Even if the individual was charged and even convicted under the Criminal Code.

The WSIAT’s so called justification was that when a worker is entitled to workers compensation benefits then they are barred from suing the employer. This is commonly referred to as the Historic Trade-off.

It is important to note that the WSIAT decision was issued prior to Morningstar v. WSIAT. As such, one could attempt to argue under the same conditions as Morningstar to prevent being limited from suing the employer for such outrageous conduct!    

My Concerns on the issue of Rape and other Attacks and Forced Return to Work:
It is important to note two important things.

First, as discussed in detail that the law, at least in Ontario, has dramatically changed to force injured workers back to work. That moreover the WSIB has taken a very draconian approach when forcing workers back to work. This is because the WSIB’s only priority is to save money for employer rebates!

Second, that if a worker is attacked at work, whether sexually or not, and they are forced to return to work. They then develop as a direct result of the return to work post traumatic stress disorder or other mental illness. According to section 14(7) of the Workplace Safety and Insurance Act, a worker cannot claim workers compensation if they develop a mental injury as a result of the return-to-work process.

However, my point would be that if this ever happens to an injured worker, they should consider several options:

1. Filing an appeal of the decision within the workers compensation system and challenging the section of law under the Human Rights Code and the Charter of Rights and Freedoms, 
2. File a civil suit against the employer and make the claim based on Morningstar. 
3. File a human rights complaint against the employer and the WSIB with the Human Rights Tribunal of Ontario.    

These options have pros and cons and also are specific to Ontario. This is why each individual has to weigh each option carefully. Also, in some situations one can do more than one option or all the options. There may even be other options to consider. It is always best, when possible to consult legal professionals before making any decisions.

The point is do not accept what your employer or the WSIB says,
you need to educate yourself about all your options and make the best decision for you!  

Ontario’s WSIB Has Proven Itself Unworthy to Manage Our Monies!

 Ontario’s WSIB Has Proven Itself Unworthy to Manage Our Monies!

First, I wish to apologize to all, for being so busy that I have not been able to keep up with my Blog and the Injured@Work newsletter. While some consider doing a newsletter and a Blog, work, strangely, I do not. This is because it helps relieve my frustration with my own work injuries. This is done by simply conveying information to you. Whether, in the Injured@Work newsletter, or in this Blog. From this, I hold hope that I might just help one person. That provides me inspiration and then my frustration disappears. So, I soon hope to get back to this.

I would also like to start doing a Video Blog and/or Podcast. I thought I could create short 30-minute video blog segments. These segments would be on different issues impacting injured workers. I could even consider having guest speakers. Where we could talk about any subjects that impact injured workers. The guest speakers could be experts in a specific area and they could be injured workers. Injured workers who just want to talk about their experiences with their, work accident, injuries, employers, health professionals, and/or workers compensation system. The nice thing, if I do a video blog, is that to do a Podcast all I have to do is separate the audio from the video Blog and I will have my Podcast… I think!

Well at any rate, on to this Blog and the meaning of the title…

For those who do not live in Ontario, or do not know, Ontario’s workers compensation board had its name changed to the Workplace Safety & Insurance Board, or the WSIB. This was the result of decades of lobbying, by Ontario’s insurance industry, to take over Ontario’s workers compensation. The first step was to convince people workers compensation was not workers compensation, but insurance. Then next, to claim that Ontario's workers' compensation system it is better off being privatized. The first step was done in January 1998. This was when the Ontario Legislature changed the name to the workers' compensation law, changed the name of the workers' compensation board, and changed the name of the workers' compensation appeals tribunal. The Ontario Legislature did what the insurance industry wanted. They included the word "insurance" in all the names. Most devastatingly to injured workers, the Ontario Legislature included the removal of the right to workers compensation. Instead replacing with the right with a privilege. Now injured workers must beg for.

I am often puzzled how the Ontario Legislature can say that the historic trade off still exists.
The historic trade off was commonly known as:

Workers lost their right to sue employers
for their injuries as a result of their employer's workplace
and in return workers were provided a right to workers' compensation.
The only requirement was workers must prove their injuries were the result of the employer's workplace!
This was confirmed by the Supreme court of Canada in the case of
Nova Scotia v. Martin. 

Now days, the historic trade off seems to really be:
Workers' lost their right to sue their employers, but are forced back to work the day after a work injury.
Where is the right to workers' compensation? 

Seems today it is more like a Historic Ripoff!
This is why I now include the hashtag #HistoricTradeoffIsDead with my social media posts.

However, one key feature in both the Ontario’s former Workers' Compensation Act, R.S.O. 1990, c. W.11 and the present Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, was the statement that the Act must be implemented in a financiallyresponsible and accountable manner.

I raise this point, as it is key to this Blog. It is why I submit to you the WSIB, the care keeper of the monies destined to injured workers, is unworthy to continue to perform their obligation!  

I first have to go back in time a few years ago. This was when I was before the courts arguing the bad faith conduct of both the WSIB and the WSIAT towards me was, without question, an abuse of their public office. As confirmed in their own law under s. 179. To this the WSIB counsel, Mr. Belec had quoted the above line, but did not make mention of the rest of the purpose. Mr. Belec’s purpose was clear. 

To convince the Court that I, like all injured workers, was nothing more than a
FREELOADER! 

Furthermore, to grant me, or any injured worker, anything would be fiscally irresponsible for the court to do. Moreover if the court did that somehow, it would cost taxpayers! Sadly, his argument was so effective the court said that both the board and tribunal cannot be sued as they lack the legal capacity to be sued. What is interesting to note is that the Court was incorrect in the interpretation of the law.

First, while the law does provide for limited immunity to board & tribunal staff, it provides no immunity to the board or tribunal for the actions of their staff. This is confirmed when reviewing s. 179(3)(4). This provides board/tribunal staff with LIMITED immunity and no immunity to the board/tribunal!

Second, and more importantly, in my claim before the court, I did not list any staff of the board/tribunal as defendants. I only listed the board and the tribunal as defendents.

This legal tactic often used by the WSIB and WSIAT would again revisit me. This was recently in an application for judicial review. A review is sort of like an appeal, where one has no right of an appeal. This was when Mr. Lokan, counsel for the WSIAT again repeated the statement and again he got his wish my judicial review was dismissed before it was even heard! 

It is very interesting to know why the courts give such, as they say deference tot he WSIB and WSIAT, or as I say preferential treatment to the WSIB and the WSIAT. This the courts reasoning is from a "very strong privative clause." The meaning is that the intent of the legislation is to keep the matters within the administrative appeal process. A good example often cited by courts is the Supreme Court of Canada's case of Ontario Energy Board v. Ontario Power Generation. In this case, the Supreme Court of Canada explains the purpose of a privative clause. That is to protect the public interest, which in that case was to protect consumers against price gouging in the energy sector.      

However, respectfully, I disagree with the Supreme Court of Canada's position. That while in cases like that of the above mentioned case I agree completely there should be a strong privative clause. This is because there is a strong public interest need for it. That being protecting the price of energy for consumers. Most importantly, allowing such a board to take part in an appeal/judicial review of its' own decision also protects public interest. However, when we look back to the intent of the workers' compensation, by reviewing the Meredith's reports. Meredith issued reports between 1910 and 1914 from his in-depth research on workers' compensation. The reports led to Canada's workers compensation system. Within the reports on Meredith' argued for a strong privative clause. However, it was NOT meant to prevent workers from getting justice, as he said it was solely meant to prevent wealthy employers from challenging every decision of the workers compensation system. Thus protecting workers from losing their right to workers compensation. Today, workers lose their right to workers' compensation and are prevented from any lawful redress to the courts. All for the wrong reasons!

Today, it seems, Meredith's dream has become
Meredith's nightmare!        

Now fast forward to the winter of 2022. For those who don’t live in Ontario, this was the lead up to the coming election in June 2022. Doug Ford, the current Premiere of Ontario, at the time, was a conservative and obviously wanted to be re-elected. Throughout the pandemic Doug Ford was often criticized for not doing enough for business, well small business. Doug Ford and Monte McNaughty, Minister of Labour had to come up with a plan to raise Doug Ford's likeability. They decided on a plan to give money back to business from the WSIB's so called surpluses. Money that was intended for injured workers. They knew injured workers could do nothing as nobody would listen or even care, when injured workers screamed fowl! They knew this because of years of ant-injured worker stigma campaigns by employers and government. All of which imply all injured workers are faking their injuries. So, the WSIB is allowed to force injured workers back to work against their and most importantly their doctor's safety & suitability concerns. In many cases injured workers suffered new work injuries. Some severe in nature. The WSIB has yet to ever be held accountable for this. the WSIB knows this. This is also know by Monte McNaughty and Doug Ford and why they hatched their plan to redirect funds to employers. All to make Ford look good.       

Then Doug Ford and Monte McNaughty issued a press release. It simply stated that the WSIB would be refunding $1.5 Billon to employers. Obviously, this press release was to coincide with the up coming election to make Doug Ford look great in the eyes of all business.

What many do not know is that Ontario’s workers compensation law prevented Ontario’s WSIB to give such rebates back to employers. Well not surprisingly, Ontario’s conservative led Legislature created a Bill to amend the law to allow the WSIB to give all this money back to employers. So, to make it appear the Ontario conservative led Legislature was fair, they empowered a legislative committee to discuss the changes. Of course, they heard from countless employer lobbyists. Not surprisingly they were well paid. There were two injured worker groups. Once of which was composed of volunteers. I was one of the volunteers and had the opportunity to speak before the committee. I remembered one conservative MPP saying to me well uhm uhm… we increased the Office of the Workers Advisor's budget by $10 million. My reply was, great all you did was reduce the wait time of those injured workers who cannot afford paid representation from five years to three. Needless to say, it was a waste of my time. This is because the Conservative MPPs had made clear to me and others, they had already decided before hearing me or anyone else. Even though it was a waste of my time, I would still do it again. This is because our voice must be heard, even if they ignore us. 

If we don’t speak up, they will say we agree by our silence.

 Okay so now, let’s re-cap…
Ontario has a so-called surplus of monies and Doug Ford Monte McNaughty want to give it all back to employers. This way employers will be really happy with Doug Ford and make sure he gets re-elected. Needless to say injured workers all know where this so called surplus came from... 

IT WAS STOLEN FROM INJURED WORKERS!
In my social media posts on Twitter, I often joke by calling 
Monte McNaughty the Sheriff of Nottingham 

and Doug Ford Prince John

Why because Doug Ford steals from poor injured worker to give to rich employers!

Ironically, just like the Sheriff of Nottingham,
Monte McNaughty does the stealing for his master, Doug Ford! 

Most importantly, they want to give the stolen monies to employers just before the election. To do this, the conservative led Legislature had to pass a Bill to change the law. After the hearings, not surprisingly, they did!  

Then the Minister of Labour Monte McNaughty and Doug Ford made their coveted press release. Not surprisingly it was covered in all the mediaoutlets. Last time I checked, it was well over 40. Then, I thought to myself, that is some wicked press release!  

 Here is the best part…

The WSIB, then instituted an advertising campaign for the $1.5B rebate. It was in print ads and digital ads in newspaper, yes, print papers still exist. It was on prime-time television and radio and form what I can gather it was across the entire province. Now, many may say ok that is sort of okay as the WSIB is making business aware of the $1.5B rebate. However, does the WSIB not already have the contact information for all business who would get the $1.5B rebate? Obviously, one of the criteria was that a business had to pay into the system in order to get a rebate.

So, I ask you this, why did the WSIB not just send an e-mail, or mail a letter
to employer's which they have their address for? 

Is this not being fiscally irresponsible?

Also, when you think about the timing of the WSIB’s $1.5B rebate, you realize it was solely politically motivated to get Doug Ford re-elected.

So, a better question is…

How much did the WSIB spend on the advertising campaign for this $.5B rebate? 

Think about the cost of implementing such an advertising campaign, in the major mainstream media outlets, often front page, in the costliest province in Canada, and to do it nonstop and across the entire province. 

Well honest to goodness, I have no comprehension as to the cost. So, I decided to find out. On March 22, 2022, I had sent a freedom of information request to the WSIB. My request was simple. All I asked was the total amount spent on the $1.5B rebate advertising campaign. One would think it would be an easy question for the WSIB to answer. ESPECIALLY, when they have been mandated to be both financially responsible and do so in an accountable manner. Yet, they needed more time and in a letter to me they said so.

Click here to see the WSIB letter for time extension

Well after a considerable delay and not surprisingly, well after the election, the WSIB finally responded and provided me a host of documents, all of which I did not want or need. I just wanted to know the total amount spent on the $1.5B rebate advertising campaign. Here is the funny part…. 

They redacted all the dollar amounts! 

Now I can see if I was asking about personal information. Maybe even expenses or wages, which are allowed to be disclosed. See for yourself here. However, I am left utterly puzzled and very concerned with why the WSIB redact dollar amounts? 

Click here to obtain a copy of the decision letter & documents

The Individual did say they would attempt to get me the total amounts,
which is what I asked for in the first place!

 Click here to view their e-mail

Now let me add to the fun…
When Doug Ford was elected in 2018, he ordered the Ministry of Labour to stop enforcing Ontario’s Occupational Health and Safety Act. 

Doug Ford even went so far as to cut their budget which was not funded by taxpayers! 

Now many did not realize the impact and the real reason why Doug Ford did this. In about the fall of 2021, I discovered a webpage on the Ministry of Labour’s website. It listed the number of convictions under the Ontario’s Occupational Health and Safety Act. This was done by year. From these numbers a clear observation was made that in 2018 before Doug Ford being elected conviction rates were about 900, then compared to 2020 where they dropped to less than 50. A more than 90% reduction. I had published these numbers on page 14, of the January edition of Injured@Work newsletter. 

I was concerned with the startling numbers for two reason. First, this was a significant loss of revenue to the province. Not a very smart financial move to say the least. Wait I thought he was a business man! Second, was that I realized that one of the conditions for employers to qualify for the WSIB $1.5B rebate was they could not have any convictions under the OHSA in the past two years.
I know it is a NO WAY MOMEMT….          

Now, here is the funniest part of all….

Just before the June 2022 election, a fellow injured worker advocate Steve M., had e-mailed me and said Hey Paul where is that site with the data on OHSA convictions. I first thought what? That old coot got the web address wrong. So, I went and checked. Sure, enough the webpage was gone and in its place was a under construction page. It said they are upgrading their site. YEAH RIGHT! Crap and I thought  Steve was an old coot...whoops! 

I then sent an e-mail to the Ministry of Labour demanding the conviction numbers. Instead, they sent me conviction numbers for 2020 and 2021. SERIOUSLY!

They have since "restored" the webpage and no surprise the 2017 numbers are gone. 
Click here to see the Ministry Page

It is now clear to me that even though the WSIB is supposed to be "arms length" from the Government, the WSIB must be taking direct orders from the government. Moreover, they are acting without integrity, by conceivably influencing a provincial election! I did send a complaint to Ontario’s integrity commission but no surprise no response!   

 I will keep you all updated on this story of the WSIB’s influence and intentional mismanagement of monies intended for injured workers! 

As Robin Hood would say... the fight for Nottingham continues LOL!    

Maybe the Historic Compromise can be Compromised

 

I have realized something about the so-called historic compromise, regarding the Meredith Principles! Previously I have reluctantly conceded that one cannot legally challenged the historic compromise on Charter Grounds. This is because it has already been done. However, I realized since those Charter challenges, things have dramatically changed, that change being neoliberalism, or as I like to say neofascism. Perhaps maybe it is now possible.

The historic compromise was that in the year 1914, injured workers LOST their common law right to sue their employers. In its place injured workers receive workers compensation benefits. This was something many believed to be a fair deal.

 

Advocates in favour of the system argued that injured workers would have to wait years for the courts to get any justice. However, like anything in history, the most dominant players get to write the history books, or in the case of workers compensation the comic books!

 

When you read a well written article by Eric Tucker of Osgoode Law School. He explains the history before worker compensation law. Well, the one inspired by Sir Justice Meredith. He explains that prior to 1896, injured workers had a common law right to sue their employers. The only problem, he explains, was that employers were always able to avoid any accountability, sort of much like the way it is today. Then it was three common law defenses. Contributory negligence, assumption of risk and fellow servant. Well, this was until in about 1885 when a factory in Hamilton, Ontario blew up, killing five workers. Not surprisingly the employer was never charged and worst, yet the workers families got NOTHING, much like today. Surprisingly, their deaths were not a complete loss. There was such a public outcry in Ontario, that the Ontario Legislature actually made a positive change. In 1896, the Legislature enacted, the first workman’s compensation act. This law was really known as the employer liability law. That is because it provides no compensation to injured workers, but it did remove the three common-law defenses used by employers.

 

Now what I found fascinating was what happened after the enactment of this law and the factories act. What happened was that injured workers started being successful in civil lawsuits against their employers. Then not surprisingly some four or five years later there was GREAT concern with this. In response to this employer fear, the Ontario Legislature created a Royal Commission. From this point forward everyone knows that it was headed by Sir Justice Meredith who did the report and from the report came out of it an actual workers compensation law. Blah blah blah. However, many do not realize that Sir Justice Meredith was a former Conservative Premier of Ontario. Also, that the government that passed the workers compensation law was a conservative government. Kinda makes you go huh!            

 

So, as everyone knows, after Ontario enacted the first workers compensation law, this spread across Canada and into the U.S.

 

Now, Canada is a funny fickle fucker. I say this because we have a Charter of Rights, which is somewhat unique to many other countries. However, many do not realize that there are two sections of the Charter that can suspend or override your Charter Rights as a human being. That is section 1 of the Charter. This states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

 

So, you ask what does this gobbledygook really mean? Simply put if an individual believes their Charter of Rights has been infringed/violated by a law then they can file a petition with the court for a remedy to have the law invalidated. Now once an infringement has been proven by the court to have occurred by a law. Then the onus is on the government defending the law to prove that the infringement is “demonstrably justified in a free and democratic society.” So, for example, in the extreme, if the government were to enact a law to bring back the death penalty. The government could, even if it is a violation under section 7 of the Charter – Right to Life. So long as the government establishes it is “justified in a free and democratic society.”         

 

Then there is an even more interesting twist to things. If a court, for arguments sake, says the law is in fact a violation of the Charter AND it is not justified under section 1 of the Charter. Then the government has the lawful authority under s. 33 of the Charter to invoke what is commonly known as the not withstanding clause. This means if a Court says it is wrong, then the Government can pass a law and basically says yeah, we know but we do not care! Worst yet it is completely legal and constitutional under s. 33 of the Charter. Now in the past, people were often reassured by the reality that a government would not act so irresponsible. However, I have always been a skeptic of this position. This is simply because I study history. Specifically, how the NAZIs took over control of Germany just before WW II. All I will say is that as the saying goes:

 

“Power corrupts - absolute power corrupts absolutely!”

 

Now if I have not already lost you and I hope I have not, let us get back to the issue of workers compensation and the Charter. Now many injured workers have argued with me saying I never agreed to this historic compromise crap. I am actually saying it nicer than they have. However, I am just as angry and pissed off as they are! I am just trying to help them avoid the pitfalls I have learned about.

 

The pitfalls being that shortly after the Charter was enacted there was numerous Charter challenges of the so-called historic compromise. Moreover, these challenges were not in just one or two provinces or territories but occurred right across the country. In simple terms the decision of the courts in every case was basically the same. The court determined that the historic compromise was an infringement of our Charter Rights under section 7 of the Charter. However, that the infringement was justified under section 1 under the Charter. The court determined that injured workers, for the most part, get speedy determination and payment of benefits, in return for not being allowed to sue their employers. Therefore, the court dismissed every Charter claim.

        

NOW, before you snap and scream at me, wait just one second and let me explain something. It has taken me countless years to slowly start to understand the law and the wacky thing we know as our Charter and I will explain my reasoning and maybe there is light at the end of this dark depressing tunnel.

 

You see when the court determined that injured workers get speedy determination and payment of benefits. The Court did not consider the future with a global economic shift in political policy.

You see in the late 1990’s in Canada we went through an economic phase know as neoliberalism, or as I like to call it neofascism. Basically, business was treated like royalty and in many cases even better. Regulations, including safety regulations were reduced and sometimes eliminated. Many government crown corporations were privatized. Advocates of neoliberalism claimed it would be cheaper for taxpayers. Then in Ontario we were hit with the infamous Mike Harris and his so-called common-sense revolution. The only thing common sense about it was the average working person was going to get screwed! Like in many other countries Harris promised it would be better for all, if the rich got richer, they would give the lesser and things would be better for all. As we all know now, this was a load of crap. Part of Harris’ revolution was attacking workers compensation. This was changed with the infamous Bill-99. I actually struggle to write it. Within the bill it literally wiped out any rights for workers when they are injured at work. Many felt like they were no longer human beings. I was, am one of those. Being forced back to work that was dangerous, unsafe, and unsuitable. Harris knew that he could do whatever he wanted to injured workers. This was because Harris knew injured workers had no legal recourse against the law or the illegal actions of the WSIB. Harris took away our right to work compensation benefits.

 

Now, since the previous Charter challenges on the historic compromise, Harris and all other governments across Canada has changed the historic trade off, compromise or whatever you want to call it. The change in most cases forces injured workers back to work, with no time to proper and safely recover from their injuries. Ultimately it provides no speedy determination or payment of benefits. Moreover, when the workers compensation boards are wrong with forcing an injured worker back to worker there is no accountability of the workers compensation boards.

 

Therefore, it may be possible for an injured worker, or other to bring a Constitutional Question challenging the Charter infringement as previously argued. However, this time it would not be justified in a free and democratic society as the injured worker is left with nothing.

 

Now many injured worker advocates will scream at me WHAT THE HELL ARE YOU DOING? To this I reply leverage. In order for anyone to go to the negotiating table and be successful one must have leverage. The real fear of employers facing countless class action lawsuits will actually get employers on the side of injured workers. As the saying goes pay a little now or pay a lot later! Simply put it will give the injured worker movement a power leverage tool to use to actually gain support of employers.

PERCEPTION IS EVERYTHING!

 PERCEPTION IS EVERYTHING!

I do apologize as I have not been able to do my blogs, on a regular basis, as I wanted to. This is because I have been very busy with my own court actions and many other issues. I hope this will soon calm down. I then can get back to finishing my website and doing more helpful blogs.

 

As always, I welcome any input good, bad, and sadly ugly!

 

Ok so I did it again!

I was going to do a short post on social media, but I realized to really explain everything I must turn it into a blog. So, here it is on the “Perception of Workers Compensation Benefits” and what you MUST know when you are fighting your WCB/WSIB/WorkSafe.

 

While I am preparing my legal arguments for my judicial review of the WSIAT (Ontario WCAT) decision, I realized something. The law allows the WSIAT, at least in Ontario, to stand as a party to any applications opposing the WSIAT’s decisions. What is even more concerning is that the courts allow the WSIAT to aggressively oppose the applications for judicial review (in effect appeals) of the WSIAT decisions.

 

This is, in part, perhaps why in its 40-year history only 2 decisions of the WSIAT have ever been judicially reviewed by the Ontario Courts.

 

The only reasons why the WSIAT has been SOOOO successful is for two reasons.

The first is that the WSIAT, in most times, are going up against unrepresented injured workers, who struggle to, learn the court process, conduct legal research, and attempt to form somewhat coherent and convincing legal arguments. All while dealing with their injuries.

The second is that the WSIAT can defend their decision being challenged in the courts, which is to the point that the WSIAT appears to be almost perfect!

 

There are two categories of administrative boards/tribunals in Canada. These categories have an extremely important purpose, and it is this incorrect categorization that is at the heart of the WSIAT’s almost perfect record.

 

The first category are those administrative boards/tribunals that act in the best interest of society.

These would be for example:

·       Energy regulating boards, who regulates energy costs;

·       Licensing boards, who issue or deny license for driving, liquor and so on.

·       Social Assistance program board/tribunals, who award or deny social assistance benefits to those in need.

 

The second category would be are those administrative boards/tribunals that hear and settle disputes between two parties, with matters that have little or no direct interest in society. 

These would be for example:

·       Human rights commission/board who hear a human rights complaint between one party against another.

·       Landlord & tenant boards who hears disputes between landlords and tenants.

 

In Canada, there are over 700 tribunals and boards, who perform a wide range of tasks. So, there are many more examples.

 

Now let us see where workers compensation boards/tribunals fit in these two categories?

 

As many of you may know, workers compensation boards pay benefits to injured workers out of a fund. This fund is solely funded by employers who pay premiums into it. It is NOT in any way funded by taxpayers. However, as many of you may know, when injured workers are denied their legitimate claim to workers compensation benefits, in most cases countless numbers of injured workers are then forced onto taxpayer funded social assistance programs. This, in effect, transfers the cost of workplace injuries from employers onto the backs of taxpayers.

 

For example, in data obtained from the Ontario Ministry of Children, Community and Social Services I learned that on average each and every month,

4,444 injured workers are forced onto Ontario’s social income assistance programs.

This costs Ontario taxpayers more than $30 million a year!

 

Ok, so you now understand the types of administrative boards/tribunals and the purpose of the workers compensation boards/tribunals.

 

I ask you now, which category would you place the workers compensation boards/tribunals into the first who has a society best interest, or the second who resolves disputes between two parties?

 

I really hope you picked the second, but if you if you picked the first that is understandable as it can get a bit confusing. This is especially the case where employers and government are constantly trying to convince us that workers compensation benefits are a privilege,

when they are a RIGHT!

 

I say this as it is a long accepted legal principle that when an individual has been wronged that have a lawful right of redress! This is also included in Canada’s Charter of Rights & Freedoms under s. 7 - Security of the Person.

 

So, in case you don’t understand, let me explain why workers compensation boards/tribunals fall into the second category.

 

First, we are usually so wrapped up in fighting the workers compensation board and/or tribunal we forget who the real fight is with – OUR EMPLOEYRS! While workers compensation laws prevent injured workers from suing their employers, in most cases, the law does not change the fact that it is still a dispute between you, the injured worker, and your employer.

Therefore, it is a dispute between two parties and as such it falls into the second category.

It has no impact on society, well aside form the negative impact when things fail to work.

 

Now, why is it that the workers compensation boards/tribunals and even the courts, wrongly believe that workers compensation boards/tribunals fall into the first category. It is simple, stigma. More accurately it is the false perception that workers compensation benefits are paid by taxpayers, when we all know they are not. As I explained previously, where more than 4,444 injured workers a month are on Ontario social assistance. Why because of stigma.

 

This is why every time an injured worker opens their mouth the first words out MUST be:

 

“That workers compensation benefits are funded solely by employer premiums. They are NOT funded in any way by taxpayers. However, when legitimate claims for workers compensation are denied to injured workers, they are then forced onto taxpayer funded social assistance programs. Therefore, #WorkersCompIsARight and when that right is unlawfully denied it costs injured workers, but most importantly it costs taxpayers!”

 

 The reason why you say this is to get the decision maker, law makers, and most importantly the general public in the right frame of mind. To stop hating injured workers and start questioning the unlawful actions of the workers compensation boards and tribunals.