Received  May 26th 2008

Reforming Compensation for the Injured Worker & Betterment of Society

A popular mistake made by injured workers and people involved in the “compensation system”, including those in government, is believing that the infamous Meredith Principles were originally created to benefit the injured worker and their families. It was NOT, nothing could be further from the truth. In British Columbia, like other provinces; it was brought in when everyone was preoccupied by the Great War. Its pure function is to prevent a tort against the employer, in that employers of various classes pay into a common accident fund this is design is to create a common baseline premium based on the industries’ accident rate which on the surface looks OK, but they went too far. Workers Compensation in Canada is the last vestige of “American-Style” capitalism that is similar to “American-Style” politics similar to their heath care system, which by design is to benefit employers and screw the average working class person.

1. The problem with the Meredith Principles and Workers Compensation Acts is their privative clauses, that also allow "Board" created policies and guidelines that act like government made regulations. They are created by a private insurance company to least benefit the injured worker; along with their Corrupt Review and Appeal Bodies, in that legislation does not allow leave to be granted to a high court like a Court of Appeal or a Supreme Court of the prospective province or territory. This is unlike the Canada Pension Appeal Board or a special court set to hear such matters like a federal tax court. This is against the rule of law and certainly perhaps section 7 of the Charter.

This happens because the aforementioned existed before We The People had the rule of law as it is now and more precisely as is outlined in the Constitution Act 1982 (see below and attachments). That being said, the American Bill of Rights did not seem to help them in that department. Please note that the Canada Pension Plan Appeal Board is made up of three former superior court judges in good standing, again unlike the various Workers Compensation Appeal Bodies; this is perhaps because section 2(e) of the Canadian Bill of Rights does not apply to them (see below).

In fact most so-called appeal bodies related to workers’ compensation throughout Canada are one member panels, this despite being called a tribunal.

2. Sometime ago Ontario played with the idea of no fault auto insurance, that probably meant less or no non-pecuniary awards but was scraped because of the "legal professions" outcry. It meant less "money" for them when on contingency. That being said, if it had not been scraped; the legal process would have been to sue the insurance company instead of the other driver.

The nub of the exercise to further society and injured workers cause in general is; why can't one sue the Workers' Compensation for wage loss and future earning capacity lost and any disfigurement award aka (pecuniary loss) like any other no-fault insurance company? If Workers' Compensation could be sued they would want to settle and not screw injured workers - Just like no-fault auto insurance had it existed; else it may cost them more money. Any action before a court would not then be obligated to follow policies aka regulations made by themselves but by statutes and regulations of government.

3. Simply put, the less money “Workers' Compensation Boards” pay out to injured workers and their families; the cheaper premiums it is for the employer - so in essence the "Boards" are created to be “Employers' Compensation Boards” and is specifically designed to screw injured workers by circumventing natural justice and the rule of law. They also create the illusion to the “none injured” that they are malingerers and malcontents. Like the true capitalist state to our south, it is all about money and the control of labour.

The question is, do we live in a pure capitalist state or a state with social values that does the right thing?

Labour is treated like a commodity as everything else is; cheaper is better – China is a good example, are workers in North America the same; to be cast aside when no longer economic viable?

4. We The People need a Federal Workers' Compensation Act, which includes Regulations and Decision Making Process so the Compensation Boards only write the cheques and assess the employer for their premiums as well as doing job site safety and under no circumstances should they make up any rules, practices, polices, procedures or claims manuals concerning injured workers. Note any costs associated with the making of regulations, decision making process or advocacy for the injured worker and their families shall be born by the Workers Compensation Board of that province, as it is now, with NO cost to the tax payer except the construction of the enabling legislation.

Ø 5. Special Note to Government: As the province of British Columbia disagreed with the unanimous Supreme Court of Canada decision, neutral citation 2003 SCC 54; [2003] 2 S.C.R. 504; they created the Administrative Tribunals Act (ATA) in May 2004.

This was created so an Administrative Tribunals Act [SBC 2004] Chapter 45 is not required to consider the impact on the Charter within its enabling statute. This was updated by the infamous Bill 33 in late 2007 to include the provincial Human Rights Code to further degrade our rights and freedoms.

Ø Special note: to have a Human Rights Code issue heard, it must be within 6 months of the initial decision or action taken place, else it is barred by statute and quite often other processes or tribunals take longer than 6 months.

6. Regarding aforementioned #5 is contrary to the 2003 SCC 54 para. 28, 29, and 44.

“History is not just where we have been, but it serves as a compass of where we are going?” I suggest you read a true story of Canadian history titled; All Hell Can’t Stop Us, by Bill Waiser, ISBN 1-894004088-4, about early June 1935.

How long do you think the citizenry are going to lie down and take it? This is not 1914 or 1917.

All I can say is, it’s a disaster waiting to happen. I also suggest to all involved, to read a 105 page paper titled, I Want To Go Back to Work, Barriers to the Re-Employment of Injured workers with Significant Disabilities in Manitoba, August 2000, Workers with Disabilities Project - Another reading suggestion is a summery paper titled Workers’ Compensation For the 21st Century, by James F. Sayre, December 2001. Community Legal Assistance Society seems only to want to push paper, and as far as I have seen, not want to step up to the plate unless for a Union handout.

Justice L.D. MacLean of Court of Queen's Bench summed it up on the state of affairs with injured workers’: “This is not a level playing field, it is not fair and it offends the basic principles of natural justice." "It (WCB) is a board set up to protect the employers. It accomplishes this purpose by restricting rights of workers.”

See extract below from RYERSON REVIEW OF JOURNALISM, titled Obstacle Course, by Kate Guay, date March 2003

Overall, unemployment is huge in the disabled community. The rate of unemployment of persons with disabilities was 43.7 per cent in 1991, according to Human Resources Development Canada. HRDC's December 2002 report shows that disability employment rates slid even further. By 1996, 41 per cent of men with disabilities were employed, compared to 47 per cent in 1991. Thirty-two per cent of women with disabilities were employed in 1996, compared to 35 per cent in 1991. What's more, the December report states that “the 1996 census found that persons with disabilities are only half as likely to be employed as those without disabilities." Worse still, they are “at a disadvantage because of their disabilities: even with the same level of education, they are 20% less likely to be employed than those with no disability.”
I firmly believe the above and how so-called western countries in the past mistreated injured workers and infringed on their Human Rights and Rule of Law, particularly the good-old USA and Canada. This should be included in a special section in the New Human Rights Museum in Canada, I know I will try to make it happen. The Question is; are you going to let it continue? How would the rest of the world view Canada and particular politicians in the Human Rights Museum?

P.S. I guess the Federal powers that be, figure having one securities regulator and rules for corporations is more important than doing the same for workers’ compensation and injured workers – the real back bone of Canada.

For informational back ground to aforementioned

Second Session, Thirteenth Parliament of the Province of British Columbia 1914
Compulsory State Insurance Recommended (page M 13)

“Several of the American Acts are specially devised to overcome constitutional restrictions; fortunately our Canadian Legislatures are not hampered in regard to constitutional limitations as to their jurisdiction.”

Well Canadians now has the Constitution Act, 1982, s.52, and the Worker’s Compensation Act has to conform to its will, but no one else ever brings up this point.

There were two sections not brought forward from the Canadian Bill of Rights to the Canadian Charter of Rights and Freedoms as outlined in Compendium titled: What is the Law, Chapter 1 by then Chief Justice McEachern of the Court of Appeal of British Columbia that stated; (See http://en.wikipedia.org/wiki/Allan_McEachern for all chapters)

“There is another Statute that deserves special mention. That is the Canadian Bill of Rights, enacted by Parliament in 1960. It was a sincere attempt to guarantee certain fundamental rights to Canadians, and many of its guarantees have been duplicated by the Charter. Two of its provisions have not been carried forward into the Charter and are therefore still in force. They are s. 1(a), which purports to protect property rights through a "due process" clause; and s. 2(e), which guarantees a fair hearing for the determination of rights and obligations.”

“Apart from these two clauses, the fundamental difference between the Charter and the Canadian Bill of Rights is that the former was adopted both by Parliament and a majority of the provinces and is a part of the Constitution. It applies to all matters in federal or provincial jurisdictions. It cannot be amended except by established constitutional amending procedures. The latter, being a statute of Parliament, can be amended by Parliament at any time. As it lacks constitutional status, and is a federal statute, it does not affect matters falling within provincial jurisdiction.”

Any potential civil litigant states: It is abundantly clear that potential criminals have more rights under the Canadian Charter of Rights and Freedoms that of potential civil litigants. Section 2(d) of the Canadian Bill of Rights was not brought forward in it’s entirety to the Canadian Charter of Rights and Freedoms as in section 11(c) of the Charter and only applies to proceedings in criminal and penal matters, but only any person charged with an offence has the right. Whereas the Canadian Bill of Rights gives that right to none alleged criminals i.e. CIVIL litigants as well unless the government and the courts feel that section 2(d) Canadian Bill of Rights and section 13 of the Canadian Charter of Rights and Freedoms means the same thing. But again I am obviously not an expert in this field, but it seems that section 2(d) is made more meaningful when combined with section 2(e) of the Canadian Bill of Rights. This gives some definite direction for the unrepresented and those who judge them.

It is also my contention that by section 2(e) of the Canadian Bill of Rights that guarantees a fair hearing for the determination of rights and obligations, it also means the right to counsel at any federal proceeding and as specified under section 2(d), unlike the Canadian Charter of Rights and Freedoms in order to protect life, liberty, security, and rights of my persons and obligations of the government.

Ø This would be in particular, if it involves an individual who may be suffering from some sort of mental or physical incapacity, especially if it were a hearing in relation to determining that very related issue. This NO representation would obviously put such an individual at a distinct disadvantage, giving such an individual NO dignity or natural justice.

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to;

(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.



Yours Sincerely
Josh Thurston