Excerpt from the Official Report of


November 5, 2015

Bill 35 — Workers Compensation Amendment Act, continued

S. Simpson: I understand that we’ve had a difference on this amendment, and the amendment has failed. However, I do want to just take a moment to be very clear about the conversation, the exchange, with the minister that was had around the amendment as it relates to section 174.

What I heard the minister clearly lay out was her commitment that the changes that have been put forward in Bill 35 are intended in no way to reduce the participation of committees or workers. That is not the intention. In fact, she’s looking for this section to enhance the role of workers and committees in the investigatory process.

I heard the minister say her concern with the amendment was that it may have been too broad but that she is still very committed to, in fact, enhancing the role of joint occupational health and safety committees and their members in this process.

I heard the minister, I believe, talking about the importance that she puts on this, the emphasis she puts on this, and that she will be writing to the board in relation to this. She will be providing direction to the board to engage the regulatory process, including a public hearing, under the conditions of the act, and she will be looking for that process to, in fact, be driven by the intent to improve the situation and participation at the committee level for workers in the investigatory process.

To the minister. Can the minister confirm that my interpretation of what her intention is, is correct, or correct me if it’s not, and will she commit that the letter that she will be writing to the board in regard to this matter will be made public at the time she provides it to the board?


S. Simpson: I want to propose a further amendment to Bill 35, the Workers Compensation Amendment Act (No. 2), 2015, to amend as follows:

[Section 7.1, by adding the following section:

7.1 Section 175 (2) is amended by striking out “and” at the end of paragraph (b), by adding “, and” at the end of paragraph (c) and by adding the following paragraph:

(d) as soon as practicable after the report is completed, either

(i) provided to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, posted at the workplace.]

I believe that’s been made available to the table and to the minister.

On the amendment.

S. Simpson: There were two critical factors in the discussion of this bill with the minister. One was the section that we’ve just addressed and dealt with. The second was this issue.

We know, when we get to section 176 here, which is the complete report that will be provided in any investigation, that those reports are made available to the committee as they’re made available to the board. That process is certainly fairly complete.

What we didn’t have in this legislation, in 135, was any direction that the preliminary report be made available. The requirements under the act are that an employer, when there is a significant incident or an accident, must complete a preliminary report within 48 hours. That report can be provided to the board upon their request, but where that report went other than that was somewhat unclear.

This will require that the joint occupational health and safety committee be provided that report in a fairly expeditious way. That creates, I believe, an opportunity for that committee and for other workers in the workplace to be able to pretty quickly ascertain whether, in their view, the preliminary report — which is preliminary in nature and certainly doesn’t dig as deeply as the complete report will — fairly reflects what the workers and the people in the industry and the shop believe has occurred — and at least to determine if the parameters of the report fairly reflect what has occurred.

If the report has indications that the committee believes need further work, the committee has the ability, obviously, to respond to the employer in that way or to respond to the board as well. So the committee has a lot of tools in place.

The important thing. It goes back and reflects on the discussion we’ve had in previous sections about the real intent of much of Bill 35, which is: enhancing the role of joint occupational health and safety committees; giving them more tools; giving them more ability to be successful at their job as kind of the front-line entity, organization, to help make workplaces as safe as they can make them. And that’s part of their role.

When you have incidences…. In industrial shops and other shops, there will be incidents that will require these preliminary reports. I think what we do here, with this amendment, is ensure that the people who have a responsibility under the act, as members of the committee, have as much information as they can possibly have to understand what occurred and to be able to express a view on that, if they have a view, or to be able to, maybe, provide some assistance or some advice that will help with the framing of the overall report — the larger report, which will come in the next 30 days following that.

I do believe that if we want to enhance the role, then it becomes very important that in doing that, we have the ability to ensure that this committee has as many tools and resources as possible. One of those is the preliminary report. This amendment will ensure that report is there.

The other thing. We know that there are certainly workplaces of under 20 persons where there’s not going to necessarily be a committee and other workplaces where, if this occurs and if the employer has an obligation to produce a preliminary report after an incident, that report will get posted so that any worker in that workplace has the opportunity to peruse that report and to determine for themselves whether they believe it fairly reflects what might have occurred in any situation.

When we go back and we look at the Babines and the Lakelands, I think one of the things we know, and I know it’s the work the minister has done with Bill 9 and with this bill…. We know that critical aspects of the procedure have not met the test, and one of them has been the role of these committees. This, I think, helps the committee to do its work.

I think it provides an additional obligation to the employer that’s a pretty achievable one but opens up other means of communications to make sure that we can move ahead and, hopefully, catch some challenges or difficult situations in the workplace very early and ensure that everybody is being as transparent and accountable as they need to be when they’re reporting out circumstances or situations that would have led to an incident report and a preliminary report here.

I am hopeful. I’ve had the discussion with the minister, and I know the minister is very sympathetic to this issue. I’m very hopeful that we’ll have some success with this amendment.


S. Simpson: In this section, essentially, the language here is very much like the language of the amendment that we just passed, only in this case, it references the final report and the writing of that report.

With this final report, could the minister explain — and this is more for the record than anything else — when the final report is done, what is the process? How does it go? It goes to the board. It goes to the committee. Where does it go, and how does it get addressed?

We know that this is not a report…. Whereas the preliminary report is one where the board has discretion as to whether it wants to receive it or not. I assume that probably would be determined, to some degree, by the significance of the incident, the accident, whatever, and particularly whether there were any injuries related to that. But when the final report is done, could the minister maybe explain how that report then makes it through the different processes: who gets it, what happens to it and what happens next, after that report is completed?


S. Simpson: I understand where there could be situations where this would occur. The minister says that if it was a complex situation, the board could put an extension in place, allow the company an extension. Are there limits on those extensions? Or is the timeline for extensions entirely at the discretion of the board?


S. Simpson: Are there incidents here where…? It may be like a Babine or a Lakeland, and we hope we don’t have to experience something that significant again and that catastrophic again.

But in a major incident, are there times when it becomes very clear very quickly that we’re dealing with something that is large, where people have potentially been hurt, and that this process just goes by the wayside and the board just steps in and takes over the whole investigatory process themselves, without having an employer’s response, and just says: “We’re in. We’re bringing our investigators in. We are taking control of this investigation from the outset”?


S. Simpson: There’s a bit of legality to this that I don’t entirely understand. We’ll see if maybe we can understand it.

We know that when we dealt with Bill 9, one of the significant features of Bill 9 was the firewall, the separation of the two investigatory processes. If, at some point, it triggers consideration that there may be a criminal negligence aspect to this or something else that may require this, at some point, to end up with Crown counsel and potential charges, then, all of a sudden, the rules change around the investigation and how that proceeds.

We know, and we’ve talked about this before, that the employer’s investigation is — I believe this is true — not seen to create any risk for that potential criminal investigation, should it happen. It’s a piece of work done by the employer. For any evidence there, the investigation may or may not choose to use it, if it becomes a criminal matter. And I understand that.

Does it change at all if WorkSafe comes in and essentially takes control of the investigation? We’re now saying that doesn’t preclude the employer from proceeding, but they now are proceeding pretty much directly under WorkSafe, who have locked down the site, secured the site and made any kind of decisions they need to make about how that site does or doesn’t change.

Does that change the role of that report and potentially make it a situation that might compromise….? It’s no longer just the employer being independent. Once WorkSafe steps in and says, “This is serious. We’ve got somebody on the site now. We’re going to tell you what you can and can’t do. It’s not up to you anymore…,” does that change the role of that report and create a potential implication that the employer’s process could compromise that?


S. Simpson: I thank the minister for that. That’s helpful.

Just one last question on this matter, so I understand it. I know that the more conventional WorkSafe approach of coming in and doing an investigation kind of takes it to one level. The minister talked about hierarchy. We know that if there’s a determination fairly quickly that there may be something significantly wrong here — there may be negligence; there may be other conduct that requires a different kind of investigation — then it’s kicked up the ladder to this other investigatory group within WorkSafe. If they get it and take charge, then I’m sure they take a much….

I don’t want to suggest that the first group doesn’t do their job. But they take a much more strident or stringent view of the investigation, because they know they have to meet standards of criminal justice and not compromise evidence, which was the problem we saw in the Lakeland-Babine situation.

They are going to investigate under very strict parameters so that they don’t compromise the potential for a Crown prosecutor maybe to receive a file and be able to act on it if they see fit and not say: “Evidence was compromised and we can’t move forward.”

If it goes there, does that change at all what happens? That would happen pretty quickly, I expect. The first investigators come in. They’re going to determine pretty quickly if there’s any inkling that there’s something significant here, or that we think there may be, and move it over to the folks who will do that.

Does that change the responsibilities around the final report? I know the minister said that that could get put off. You’ve got the RCMP. You’ve got all kinds of stuff going on before you may even allow the employer to start an investigation of their own, because there are a lot of other people in there who have priority.

Does that change the rules, if it goes off to that second body in the investigative process, in terms of the employer responsibilities or what happens with any of the other investigative processes with the committees?


S. Simpson: Just a couple of quick questions on this. Section 9 is the commencement section. It says that sections 4 to 8 will come into force on January 1.

Those are the sections that deal substantively with changes around committees and investigation. Could the minister indicate what her thinking or hopes are around the timeline? Presumably, we get to January 1, and this comes into force. I’m sure preliminary work will be done by WorkSafe preceding that, but does the minister have any expectations about how that timeline or process rolls out — to kind of flesh out the meat on the bones of this?


S. Simpson: In closing off committee stage, I do hope that one of the things that we’ll see in the regulation — and I would hope the minister might include this in the letter that she will send — is that at some place, because there are…. Some of this are areas where we’re heading for different kinds of ground. There have been some questions around this and around other things, around pieces of this legislation.

Within the regulatory review, there will be a review process, whether it’s a year from now or two years from now — whatever is kind of settled on as appropriate. A review process to allow WorkSafe to go back and take a look at how the legislation worked, how the regulatory regime worked, get back with stakeholders and say: “Okay, we had some objectives to achieve here. How did we do in terms of achieving the objectives?”

Get the input of everybody who should have say in that so that we can have some evaluation about whether the work, which I think has been meaningful, on the legislation is getting to where the minister and, I believe, we all want to get to. Are we accomplishing the objectives? I do hope that that will happen.

Finally, I want to say that I’m hopeful. As the minister said, I think, at the opening of second reading, these are a couple of steps. These are incremental steps along the way to dealing with an array of challenges that I believe we have around worker health and safety. These are steps in the right direction, I believe. I think they will make things better, and that’s always a good thing. I’m hopeful, moving forward around that.

I want to thank the minister for the approach. She certainly was prepared to engage, to have a conversation about the bill. I think that’s reflected. While we couldn’t agree on both, I think that’s reflected in the agreement of the government and the minister on one of the two amendments that we were looking for, which we think makes the bill a little better.

With that, I’m done.




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