Proposed B.C. workers compensation bill looks to amend liability, search and seizure rules

Law360 Canada (July 22, 2020, 9:43 AM EDT) -- The B.C. government is looking at a significant revamp of its workers compensation regime with an eye to improving financial supports for injured workers and to better deal with claims arising from the COVID-19 pandemic, but it is also proposing changing rules on liability and search and seizure which have the potential to bring significant change to how claims are dealt with by the legal system.

The Workers Compensation Amendment Act, also known as Bill 23, will raise the maximum annual salary amount on which benefits are based, expedite health-care treatment before claims are accepted and enhance the ability of WorkSafeBC (the provincial agency which oversees the workers compensation system) to investigate workplace incidents. Labour Minister Harry Bains said injured workers have told the government that the system lacks fairness and doesn’t support them through their injuries.

“[The changes] are an important step in modernizing the Workers Compensation Act, ensuring workers and their families get the support they need, while also increasing everyone’s confidence in the system,” he said.

The new legislation would have impacts on compensation related to the COVID-19 pandemic, such as fast-tracking the effective date of presumptions for occupational diseases caused by viral pathogens. The presumption would simplify the process for workers who make a workers’ compensation claim if they contract viruses on the job and would ensure that people who are at higher risk of contracting COVID-19 at work are able to access benefits more quickly.

Laird Cronk, president of the B.C. Federation of Labour, said the changes represent a “a positive first step towards a renewed worker-centred approach to health and safety and supporting injured workers.”

“These changes and more are needed to ensure that our workers’ compensation system takes care of injured workers and their families,” he said. “We will be continuing to advocate for further changes to restore lost benefits and make the system more accessible and fair for workers.”

In addition to the enhanced financial support and COVID-19 provisions, the government’s proposals include a number of consequential changes which will impact the legal system, including giving WorkSafeBC search and seizure powers through judge-issued warrants for workplace investigations under the Workers Compensation Act rather than the Offence Act, removing the requirement that WorkSafeBC’s president must approve an offence referral to Crown counsel, and allow courts to hear victim impact statements as part of a prosecution on occupational health and safety violations.

Robert Russo, who teaches labour and employment law at the University of British Columbia, called the proposed search and seizure provisions an “interesting expansion of powers.”

“In general, that is not necessarily a bad thing, but what it means is the amount of oversight over how that power is exercised will have to be closely monitored and hopefully there will be some limits on how those warrants are granted,” he said. “But that is something you will have to see in practice.”

The courts will also be given the power to direct a convicted employer to publish facts about their offences in a newspaper or a company-wide newsletter, allow the workers’ compensation appeal tribunal to hear cases related to the Canadian Charter of Rights and Freedoms and the provincial Human Rights Code, and establish liability on corporate directors for unpaid premiums or other amounts owed to WorkSafeBC.

Russo said it was unusual to allow a body like the tribunal to hear Charter cases, and it has the potential to be problematic because tribunal members may not have the same expertise in dealing with such issues that someone like a B.C. Superior Court justice would have.

“That is an interesting development and if they tie it to workers compensation issues directly, I could see some interesting cases arising but also some interesting challenges too because it is wading a little out of their area of expertise,” he said. “And the recommendation on the liability of corporate directors was one that I think there was a varying level of support for. Again, there has to be careful oversight — I would like to see that those types of powers are exercised cautiously.”

The biggest challenge to labour and employment regimes as the country emerges from the COVID-19 pandemic will be the issue of mental health and mental health supports, said Russo.

“People are going back to work but don’t realize how much things have changed,” he said. “I think what employers will have to be conscious of is the effect of these changes on employees and try to be flexible in terms of accommodating more remote working arrangements — be aware that this is going to be a growing issue and a growing problem.”

Bill 23 is currently before the B.C. legislature.

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