Wednesday 12 May 2021

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.

7 comments:

  1. Yes. We agree. There's some writing in a case I was involved in that seems now might be a bone to chew on. I'll email a link tonight. Well said. (Darren Gregory).

    ReplyDelete
  2. So we'll written that I can actually understand every word,unlike WCB correspondence...the time has come for our governments to concede and help the victims of this corrupt organization known as WCB across Canada! Let's get this done before WCB causes any more suicides.
    Some in this world, care for fellow man,
    Some in this world, care and take a stand,
    Some in this world, collect and they hoard,
    Those ones are known, as the workers compensation board....
            
    Some in this world, get injured at work,
    Some in this world, end up dealing with a jerk,
    Some in this world, hope to someday get well,
    But end up going, through WCB hell,           

    Some in this world, the laws they abide,
    They beg and they plead, WCB throws them aside,
    When the government ignores, and says they won't help,
    The poor injured worker, let's out a yelp,
    As they lay there wondering, how to live without pride,
    The poor disabled worker, commits suicide.......   

                           By James Mansell

    ReplyDelete
  3. downed worker says:

    Here I lay with a shattered spine,

    denied diagnosis / treatment for the 100th time,

    1 doctor, 2 doctors, 3 and then 4, my specific complaints all ignored,

    1 Hospital, 2 Hospitals, 3 and then 4, are there any real doctors around here anymore,

    My request for MRI, to diagnose the injury, the reason for pain,

    Is met with denial and denial again,

    3 years pass in the blink of an eye,

    No CT scan or MRI;

    Finally in pain an MRI is ordered,

    but not for spine,

    just for my shoulder,

    the ortho surgeon requests funds 4 surgery

    but this is denied by WCB.

    I am told once the surgery for shoulder is done,

    My back pain will disappear, it will be gone,

    Then I’m labelled a malingering faker behind my back,

    From a doctor whose obviously a boneheaded quack,

    I beg for help as I’m in severe pain,

    but bottles and bottles of pills, are given again,

    a new doctor states he’s already been warned,

    so no tests are ordered, and I’m shown the door,

    Another assessment paid by WCB,

    4 doctors opinion just more physiotherapy,

    I’m given exercises and stretches to due,

    A Psych evaluation comes out of the blue.

    In physiotherapy my back starts to spasm,

    electric shocks and pain you cannot fathom,

    a new doctor orders a x-ray at last,

    and diagnoses my broken back,

    Then a MRI is finally given,

    followed by a retired neurosurgeon for opinion,

    10 recommendations he made for rehabilitation,

    Denied everything with WCB legislation,

    My injury claim closed, benefits terminated,

    Multiple complaints of severe pain not investigated.

    3 more years pass in the blink of an eye,

    my specific complaints are all denied,

    At last, I receive a physical examination,

    My complaint of pain is investigated,

    Oh here is the problem, which was missed,

    another spinal injury, the doctor insists.

    That’s 11 years ago, when I finally received,

    a proper diagnosis of my work injury,

    But here I lay with a shattered spine,

    denied medical care by WCB every time.

    ReplyDelete
  4. Throughout my Saskatchewan WCB Injury claim administration, falsified fictitious lies have been deliberately used by "Non-medical Workers Compensation claims adjuster / tribunals, to portray WCB as they actually have treated me fairly, honestly. This is so far from the truth it's literally sickening. Saskatchewan WCB and their employees are Sadistic Psychopathic Perverts, WHY? Everything possible is used to deny diagnosis, "Repetitive Denials" for investigation of my specific complaint. WCB Non-medical repetitively denied physicians Multiple requests for expedited specialist appointment, even admitted ONLY a specialist has the privilege to order MRI. Then there are the REPETITIVE denials of further injury after "Starving Me Back To Work" after the physician WARNED return to work UNSAFE, for myself and others. Honestly Sask WCB are the Worst Corrupt Bullies on this planet. Pure Evil, even falsifying MRI scan results, attacking doctors who try to help injured workers. Many Doctors won't help any injured worker, due to WCB "LIARS" - Our Governments are no better... "All refusing any investigation" into Criminal Negligence, causing severe bodily injury. Don't believe me watch this video... https://www.youtube.com/watch?v=aCxNjzMInC0

    ReplyDelete
  5. "The Court did not consider the future with a global economic shift in political policy."
    This is why the issue is political. The ideology of paying the rich at the expense of social programs prevails, handing employers decreased WCB premiums at the expenses
    of injured workers. An open for business outlook. So will a judge see it in business interest? Will you have leverage? To be seen. How this issues poses itself does
    need discussion. Thx.

    ReplyDelete
  6. We need to hit them where it hurts on their cash 💸 flow from our injuries. We can change the laws working together. I did it almost on my own, with one twin flame supporting me. Now let's do it together. No one should EVER suffer from an injury at unsafe working environment

    ReplyDelete
  7. Good read and thanks. I must share my 2 charter challenges. Presented to an appeal judge the criminal use of fraud used by police, crown attorneys and justices of the peace. His ruling was you had a fair trial. I as well presented at the time an unarguable point. Being provided a phone book and phone did not fulfill the guaranteed right to legal counsel. Was found guilty, appealed on this point of law and was granted a retrial. The case was dismissed without further presentation to this point. Later an Ontario Superior Court decision was made on this point without representation or opposition to my presented point of law. The decision was upon arrest or detention a phone book and phone does by law fulfill the guaranteed right to legal counsel under the Canadian Charter of Rights and Freedoms. This is the same law society still administrating fraudulently on behalf of both the WSIB and WSIAT. I personaly have come to hold no or little hope for justice through the legal system. I still file appeals with this legal mafia knowing their inability to be seen as criminals in a time and age it can not be helped from being seen. And filed as a means to remind them as Paul Taylor is doing. I am not the problem for seeing criminality of the crowns legal representatives. The problem is criminality of the crowns legal representatives is seen. And I enjoy seeing and being part of the fight to expose and present this truth continue. For the purpose of appropriate change for humanity.
    Pseudonym King Author name Robert Drinnan

    ReplyDelete

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 i...