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Wednesday, January 27, 2016

UPDATE: WSIA Legislative Reform

Source: Stephen C. Roberts, McTague Law Firm

Recently, there have been several legislative changes to the Workplace Safety and Insurance Act (the "WSIA"), which strengthen workers' rights and benefits, and which every employer should be aware of.

Bill 109, the Employment and Labour Statute Law Amendment Act, 2015 (the "Act") received Royal Assent and came into effect on December 10, 2015. The Act made three key changes to the WSIA.

1. Created Claims Suppression Offence

The Act amended the WSIA to add a new offence (claims suppression) which prohibits any actions by an employer that would  discipline employees who have filed, or intend to file a claim for benefits by prohibiting employers from:

  • Dismissing or threatening to dismiss a worker;
  • Disciplining or suspending or threatening to discipline or suspend a worker;
  • Imposing a penalty on a worker; and
  • Directly or indirectly intimidating or coercing a worker with threats, promises, persuasion or other means.
  • If an employer violates this section of the WSIA an employer will be subject to a penalty, the amount of which is to be prescribed in the regulations.

2.  Increased penalty/fine for Corporations

The Act has increased the maximum corporate penalty/fine for conviction of an offence under the WSIA, from $100,000.00 to $500,000.00.

3.  Changed the calculation of WSIB Survivor Benefits

The Act, further amends the WSIA to eliminate the deemed net average earnings provision currently applicable when calculating the level of survivor benefits payable in cases where the worker has no net average earnings on the date of injury. Rather than applying the statutory minimum, the amendments allow the Workplace Safety and Insurance Board (the "WSIB") to use the net average earnings of workers engaged in the same trade, occupation, profession or calling as the deceased worker at the time of the injury. This change would apply retroactively to any injury that occurred on or after January 1, 1998, and permits survivors to both request the WSIB to reconsider decisions it has already rendered; and to refile claims with the WSIB that have already been determined by the Workplace Safety and Insurance Appeals Tribunal.

Additional Legislative Reform

In addition, to Bill 109, Bill 18 and Bill 144 also resulted in legislative changes to the WSIA.

Bill 18, the Stronger Workplaces for a Stronger Economy Act 2014 added a definition of "temporary help agency" to the WSIA and permitted the government to make regulations to attribute the accident costs of a temporary help worker to the cost statement of the hiring employer. However, no regulations have been passed yet.

Bill 144, the Budget Measures Act, 2015 resulted in full indexation based on the Consumer Price Index (CPI)for all injured workers beginning January 1, 2018. It also ensures injured workers' benefits are indexed in the same way meaning that all injured workers (and their survivors) would receive full CPI indexation on the benefit amount, with a floor of zero per cent indexation and no upper limit. Finally, it provides for interim increases to benefits for 2016 and 2017 to be made on pre-injury gross earnings. Injured workers on partial disability benefits would receive, by regulation: a 0.5 per cent indexation factor increase on January 1, 2016; and a 1.0 per cent indexation factor increase on January 1, 2017.

Prepared by Stephen Roberts with assistance from Amanda Camlis. Mr. Roberts represents employers only on Workplace Safety and Insurance and other employment related matters. He has been certified by the Law Society of Upper Canada as a Specialist in Workplace Safety and Insurance Law.

Stephen C. Roberts
McTague Law Firm
Telephone: 519-255-4370
Email: sroberts@mctaguelaw.com

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