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November 26, 2021 - No. 112
Defending Workers' Rights to Compensation
for Injuries and Illness
Ontario Bill 27 -- A Scheme to Pay the Rich with Money Stolen from Workers  
• Injured Workers Community Legal Clinic Submission on Bill 27
• Occupational Disease Reform Alliance Launched
Defending Workers' Rights to Compensation for Injuries and Illness
 The Working for Workers Act, 2021 was
tabled in the Ontario legislature on October 25 by the Minister of
Labour, Training and Skills Development, Monte McNaughton. The bill
amends six pieces of legislation, including the Workplace Safety and Insurance Act, 1997. It has passed second reading, study by the Standing
Committee on Social Policy, and is now going to third reading.
The major change proposed to the Workplace Safety and Insurance Act, 1997 has
to do with including in the Act a requirement that the Workplace Safety
and Insurance Board (WSIB) pay out any "surplus" funds to employers
when the fund reaches 125 percent of "full funding" with discretion to
pay out funds when the fund reaches
115 per cent. In debate in the legislature the Minister also announced
that in 2022 the WSIB is reducing workplace premiums by $168 million,
"another tax cut for safe employers across Ontario" and that "premium
rates have now dropped more than 50 per cent since we formed
government, leaving more than $2.4 billion in local economies across
Ontario."
Injured workers, advocacy groups, unions and the Ontario Federation
of Labour made submissions to the WSIB in August during a short
"consultation" period. They have all denounced the plan and outlined
their reasons and their demands for restitution for injured workers.
This change is another scheme to pay the rich with funds stolen from
injured workers. The "surplus" in the insurance fund is the result of
cuts to services, rehabilitation, and compensation to injured workers
that has been going on for years. An all-out attack on injured workers
was launched by the Mike Harris government's anti-social offensive in
the mid-1990s under the hoax of eliminating "job killing" social
measures and putting all society's assets at the disposal of the rich
who were fraudulently called creators of social wealth. Successive
governments have implemented cuts to compensation and other measures
that deprive injured workers of benefits. The extent of the theft is so
massive that the target of "full funding" which was to be reached by
2027 has now been surpassed, resulting in the "surplus."
 The
initial justification for the cuts to workers' compensation was the
fraudulent claim that the WSIB could not operate with an "unfunded
liability." The promise was made that when the unfunded liability was
eliminated by the severe cuts to compensation for workers those cuts
would be reversed. Not only has this not happened but the
amendments in Bill 27 would make the theft of those funds permanent
with the current and all future "surpluses" achieved on the backs of
workers paid out to employers.
This is part of what Minister McNaughton said in the legislature on November 1 in debate on the bill:
"The WSIB is North America's third-largest insurance company. They
have revenues of approximately $4 billion from premiums paid by
employers and returns from investments. Right now, the board has a
surplus and is in the best financial position in its history. At the
same time, main street merchants and shopkeepers are struggling to make
ends meet and recover from the effects of the pandemic. This isn't
fair. This money belongs to small businesses in our communities. We are
proposing to make it the law for funds to be returned to those whose
premiums fund the board when the WSIB has 125 per cent of the funds
they need, and we're giving the WSIB the option to return
monies early when the fund is at 115 per cent."
 The
Minister's talk of "small businesses" and "shopkeepers and merchants"
is disingenuous. The Ontario economy is not owned and controlled by
small business people but by private monopolies that also control the
state and its institutions. It is to them that the bulk of the
so-called surplus funds will be distributed. Workers have experience of
the WSIB's practice of paying rebates to employers based on
"experience rating," rewarding allegedly safe employers for
reduced claims, a practice that was proven by injured workers' advocacy
organizations to have diverted hundreds of millions of WSIB funds into
the coffers of the largest monopolies in the province, sometimes the
same year that workers were killed in their facilities.
The billions of dollars "saved" by the government on the backs of
injured workers must be repaid to them through reversal of all the cuts
to compensation and ending the myriad obstacles that violate the right
of workers to receive proper medical care and wage replacement at a
level that allows them and their families' financial security and
dignity.
Workers' Forum is
reprinting below excerpts from a submission by the Injured Workers
Community Legal Clinic to the Standing Committee on Social Policy which
conducted clause by clause study of Bill 27, and the news of the
formation of the Occupational Disease Reform Alliance to unite
organizations fighting for justice for workers who suffer occupational
diseases.
On November 17 the Injured Workers Community Legal Clinic
(IWC) submitted proposals for amendments to Schedule 6 of Bill 27 which
amends the Workplace Safety and Insurance Act, 1997 to the
Standing Committee on Social Policy. The proposals focus on two aspects
of the proposed legislation; first, the need to prioritize
restitution to injured workers from whom money was stolen to eliminate
the unfunded liability, and second, the need to address the issue of
claims suppression, the practice of employers of under-reporting and
coercing workings into not filing claims, resulting in injured workers
not being compensated and employers with high injury rates actually
being designated as "safe employers" because of their low claims rate.
The IWC states: "This Bill is doing injured workers a great
disservice, and we urge the Committee to reject the portions of the
Bill regarding the workers' compensation system (namely, Schedule 6),
or to, at the very least, amend the Bill to include consideration of
injured workers. Specific suggested amendments to the Bill are
contained
within this submission. [...]
 "As
you know, Schedule 6 of Bill 27 proposes that when the Workplace Safety
and Insurance Board (WSIB) reaches 115 per cent funding, the WSIB 'may'
distribute this surplus among Schedule 1 employers, and at 125 per cent
funding, this distribution would be mandatory.
"We are very concerned that the WSIB has reached levels of funding
which would make the topic of surplus distribution even remotely
relevant. When the government first directed the WSIB to work toward
'full funding,' it directed the WSIB to do so by 2027. The fact that
the WSIB reached what it considers to be full funding by 2018
should be a matter of deep concern rather than pride. The way that the
WSIB was able to amass such a huge amount of money in the bank
(approximately $40 billion) was on the backs of injured workers. Before
the government or the WSIB even consider claiming to be in a surplus
position and propose paying out funds to employers, injured
workers need to be provided with full and fair compensation, in
compliance with their legal rights and as promised by the historic
compromise and founding principles of the workers compensation system."
Under the theme "Restitution for Injured Workers" the IWC lists
specific obligations to injured workers that must be met before any
"surplus" can be considered legitimate, including increased rates of
payment to cover loss of earnings, the elimination of deeming, proper
funding for occupational disease and recognition of mental stress
injuries,
and others, and concludes:
"... inadequacies of the workers' compensation system need to be
addressed before any 'surplus distribution' to employers is considered.
It is incumbent on the WSIB to identify any gaps in services and
liabilities before considering itself in a surplus position, so that
those needs can be met before taking money out of the system through
employer discounts. [...]
"In order to be able to address outstanding obligations and
inadequacies of the system with available funds, any surplus
distribution provisions must prioritize the distribution of funds to
programs and services for the benefit of injured workers -- not only
employers (the proposed section 97.1). Schedule 6 of Bill 27 is
otherwise inexcusably one
sided and pandering to employer interests and not 'working for workers'
at all."
The other major issue with the proposed legislation is that the
"surplus" is to be distributed to "good" employers. The Minister stated
that the government's intention is to "reward safe employers." A "safe
employer" is determined by "claims experience," i.e. a formula that
defines "safe employers" as those with a low number of claims filed by
workers who have been injured or made ill on the job. The IWC points
out that "Employers pay premiums based on their cost experience, but if
they coerce their workers not to claim or reduce compensations costs,
bad actors win."  Injured
workers advocacy groups have long reported that claims suppression and
under-reporting, including
misrepresenting the circumstances surrounding a workplace injury, are
serious issues. They point out that although this is difficult to
measure, A 2013 Report commissioned by the WSIB indicated that "20 per
cent is a plausible estimate of the proportion of likely compensable,
work-related injuries or illnesses for which workers do not submit
claims," that other studies (including very recent ones) have suggested
that workplace injuries are under-reported in the range of 40-60 per
cent, and that the current rate setting system does not address (and in
fact unintentionally encourages) the problem of claims suppression and
under-reporting.
The IWC proposes several changes to the legislation which would
require that the Board prioritize injured workers, eliminate deeming,
use any funds over and above those used to compensate workers for
improvement in health and safety in workplaces, and ensure sufficient
workplace audits every year to stop under-reporting and claim
suppression.
In the conclusion of their submission the IWC once again argues that
injured workers' benefits have been reduced by billions of dollars in
the name of addressing the unfunded liability, and for reparations and
ensuring proper benefits for injured workers. They say, "We, as a
society, should not be engaging in an exercise of balancing corporate
profit against full compensation for injured workers. In order to avoid
helping businesses at the expense of injured workers, the proposed
legislation needs to be amended to include the need to consult
stakeholders on outstanding inadequacies of the system before
allocating available funds, and potential allocations need to be
allowed and prioritized
for programs and services that benefit injured workers."
To read the full submission click here.
 Ontario workers and families of workers who are suffering from or have
died from occupational diseases launched an important initiative in
their fight for justice. On October 29 the formation of the
Occupational Disease Reform Alliance (ODRA) was announced at a press
conference hosted by NDP MPP Wayne Gates. Speakers at the press
conference included Sue James, former Peterborough GE worker, and two
widows of workers who have died of occupational diseases, Jean Simpson,
whose husband worked at Fiberglass Sarnia for 36 years, and Sara
Sharpe, whose husband worked at GE Peterborough for 42 years.
The ODRA is composed of occupational disease victims and family
members from various disease clusters across Ontario, including
Peterborough, Sarnia, Sudbury, Thunder Bay, Dryden, Kitchener-Waterloo
and Sault Ste. Marie. Included in the sources of the occupational
disease clusters are Peterborough GE, McIntyre Powder aluminum dust, Kitchener
rubber workers, Sarnia victims of Chemical Valley, Dryden Pulpmill,
Ventra/Pebra Plastics in Peterborough, Neelon Castings in Sudbury and
Sault Ste. Marie steel mills.
The ODRA brings together into one single advocacy coalition groups
that have been fighting for decades to get the Ministry of Labour and
the Workplace Safety and Insurance Board (WSIB) to acknowledge their workplace
diseases and compensate them.
 At
the press conference Sue James, chair of the ODRA said "Our communities
from across Ontario are wrapped in a shroud of despair, grief and
suffering. Minister, you know exactly who we are, we have reached out
to you before, through letters and emails. You know our suffering and
loss and yet you do nothing. It saddens me that you
have ignored the families who have been seeking justice for their loved
ones and the workers who continue to get ill and die. ...The time is
long since passed for this to be corrected and we are calling on you
and holding you to account and responsible for the many wrongs
inflicted on these workers and families. The Occupational Disease
Reform
Alliance will no longer be silenced."
The ODRA is making four demands of the Ford government that will
bring justice for workers and their families trying to access WSIB
benefits for occupational diseases. These demands are: granting
entitlement for diseases when they are more prevalent among workers
than in the community, not using unreasonable standards to make
decisions about supporting sick workers, creating a presumption of
work-relatedness for certain cancers, and requiring WSIB to recognize
diseases caused by exposure to multiple carcinogens at once. The Occupational Disease Reform Alliance is on Facebook and can be reached at odreform@gmail.com.
An
ODRA representative will join with Ontario Network of Injured
Workers Groups(ONIWG), labour organizations and allies for the 30th
anniversary Christmas Holiday demonstration being held online on
December 14 at 10:00 am. See ad below and watch for further information
on coming events on the cpcml.ca homepage. 
(To access articles individually click on the black headline.)
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