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.