Excerpt from the Official Report of
DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)


April 15, 2015

Debate on Bill 9 — The Workers Compensation Amendment Act, 2015

S. Simpson: Thank you, hon. Speaker. I think I'll probably go a little bit over my 30 minutes, so I'll let you know that I am the designated speaker. I'm pleased to have the opportunity to stand and speak to Bill 9, the Workers Compensation Amendment Act.

This is a piece of legislation that, as the minister says, was generated and created because of what became clear, what I would suggest are the pretty deep and structural weaknesses within WorkSafe B.C. that tragically became evident with the two mill catastrophes, the Babine and the Lakeland explosions, that led to four deaths and 42 injured workers.

The bill does move to address a number of issues that Mr. Macatee identified in his work, and it certainly does go some way in dealing with those issues. I look forward to talking about those specifics in more detail as I make my comments today, and also to talking about some of the areas where we believe that there need to be some improvements in the bill.

There are a number of pieces of the bill. There are a number of aspects of this legislation that are enabling in their approach. As we all know, enabling legislation — the devil is always in the details there.

In this case, as I understand, those regulations that will flesh out Bill 9 will in fact be prepared by WorkSafe. It will be their initiative, and they will do that work.

I look forward, when we get to the committee stage, to talking to the minister about what her expectations will be for that regulatory regime and also to talking about the assurances that the process of preparation of those regulations is inclusive in terms of consultation, transparency and accountability so that you have a regulatory regime at the end of the day you hope all of the parties to this can say is fair and balanced.

Whether people get everything they want or not, everybody will accept that the regulatory regime will, in fact, enable the objectives that the minister spoke about in her comments. That, obviously, is a piece of work to come down the road, and we will continue to pay attention to that.

As I said, the impetus for this, as tragic as it was, really was the result of the two explosions at Babine and Lakeland. The result of that, as we know, was that on January 20 at Burns Lake, Babine exploded — both of these determined through combustible dust. Babine exploded on January 20, 2012. Two workers were killed, and 20 others were injured, and then just a couple of short months later on April 23 in Prince George, a second explosion at Lakeland, where again, two other workers were killed, and 22 workers were injured.

When those accidents happened, tragic accidents, WorkSafe went in and investigated. What WorkSafe found in that investigation…. At their investigation at Babine they found a dust collection system that was ineffective. They found inspection and maintenance systems that were ineffective. They found waste conveyors that didn't adequately capture dust and that the supervisory staff at the mill did not adequately monitor, clean up or maintain the mill in a proper way to be able to deal with those risks related to dust.

Lakeland, the explosion a couple of months later, was a very similar situation in terms of the WorkSafe investigation. Dust control measures were deemed to be ineffective. The cooling fans weren't regularly inspected or maintained and didn't function properly. And the supervision was again inadequate in terms of cleanup and maintenance.

WorkSafe deemed and determined that both of those accidents were preventable and that both of them could have…. With proper oversight, proper investment, proper cleanup, there was not a reason for either of those tragedies to have happened in the way they did.

They forwarded that information on to the criminal justice branch after their investigation in order to have the branch determine whether charges related to negligence or other legal factors were available. As we know, the criminal justice branch rejected the consideration of charges, as the WorkSafe inspection and investigation rendered much of the information and evidence inadmissible in a court because of the way that the evidence was collected.

The reality is it's not that WorkSafe did…. The challenge here for WorkSafe, of course, is that due processes required under the criminal justice branch were not ones that are followed by WorkSafe when they are doing a regular investigation. They are different processes. What we discovered, of course, is that there was this situation where most of us, I believe, think that this deserved its day in court. But that's not to occur.

Of course, we know that this is a very high profile and a very disturbing situation with these two explosions, and we will talk a little bit more about that. What we do know, as well, is that they are not entirely unique.

We can go back and reflect back to the Westray law, which was a federal law that was changes to the Criminal Code following an explosion of the Westray mine back in the Maritimes. The result of that was changes to the law to create the opportunity for criminal charges to be laid against a company if there was negligence that was deemed to be preventable and charges against senior officials and executives with those companies.

What we know is that law, which was adopted decades ago, has never, ever been used, and not just in British Columbia. It has never been used in the country. You need to ask yourself, when you put a law in place that no criminal justice branch anywhere in this country has the ability to use, what you're facing. That's the circumstance that we faced here, and that is the criticism that has been made by advocates of worker safety across the spectrum. They have challenged what occurred here.

We know that the weaknesses and the situation that we faced here were very tragic at both Babine and Lakeland. We know that there needs to be a resolve to this. We have had debates in this House and questions in this House and discussion about how the government should have approached Babine and Lakeland to get to a resolution.

The government…. Clearly, Mr. Dyble, as was reported, did his work. That was followed by Mr. Macatee doing his work, the work that he continues to do at WorkSafe.

 We know that this has been an issue that I think the minister, no doubt, has paid a lot of attention to. I think that some of the changes that we're seeing…. I think the placing of Mr. Macatee at WorkSafe is a demonstration of that. I think the president and the CEO deciding it was time to retire is an example of that and is partly motivated by that.

I still think that there is more that needs to be done. This legislation will afford us the opportunity to speak a little about that, and we'll talk more about it when we get to another process around estimates here some time in the coming weeks.

As the minister knows well, the coroner's inquest that has followed on one of those incidents, the Lakeland accident, which is in play now…. The minister and the House will know that we called for an independent inquiry, not an inquest. We wanted an independent inquiry. We wanted the families and the workers and the victims to have the resources to be full participants in that inquiry. That has not occurred.

We have the inquest, and we have had a situation where the inquest was proceeding with a number of parties who were quite rightly part of the inquest, whether it was the company, the union, WorkSafe, the B.C. safety association — a number of people who have vested interests — and, of course, the coroner's own legal counsel.

We had an array of lawyers there. The families didn't have the legal counsel that they desired and that we believe they should have had. The other thing…. I think it was our view that the inquest had limited ability and has some limited ability to deal with some of these questions.

As we all know, the inquest has been adjourned at this point. It was adjourned by coroner's counsel, and that adjournment came because it came to light that the company had a company do their own investigation of the accident, a forensics company out of Seattle, which did their own work and produced what we understand to be a fairly detailed report around this that the coroner was not aware of.

They did not have knowledge of that report. That's what the coroner's counsel, Mr. Orr, has said, and he requested and got the chief coroner to adjourn that inquest at the point where it became evident that there was this body of evidence.

It also became clear at that time…. As Mr. Orr, the lawyer for the coroner's counsel, has stated, apparently WorkSafe has had knowledge of that report from the company for two years — it's what Mr. Orr had stated publicly — and that WorkSafe did not disclose that information to the coroner. They didn't disclose that information at all.

That's troubling. It's troubling that that didn't occur, because what we would expect — as I think the minister had said in response to questions here, and it's correct — is that if the intent of that inquest is to find the answers to the questions, then you would expect and hope that all parties would, in fact, be contributing to those answers.

It becomes particularly troubling when the major public body there responsible for public safety, for workers' safety, for protection of those workers and for these investigations, in fact was aware of information that they did not disclose when it became clear to them that others were not aware of that. That's a problem.

The minister, I think, was up to the inquest. I've been to the inquest on a couple of occasions to sit and listen. What I heard here was what you hear when you put six or seven or eight lawyers representing different bodies in a room and put witnesses on the stand. Those lawyers do what they do. They protect the interests of their clients, whether their client be the company or the union or WorkSafe. That's what they were doing, and this was not necessarily the environment to find, I think, the answers that we needed and want to find.

The result, though, of the matter with this report from the company that now has come out…. Of course, it led to an adjournment of the inquest. That adjournment…. I understand that the inquest will reconvene on the 11th of May. There will be evidence given by the authors of this report for the company, and I'm hopeful that at a minimum WorkSafe representatives will follow that with an explanation of why they didn't disclose this.

What has been suggested in the media — I've not spoken to folks at WorkSafe, so it's what I read in the media — is that they also declined that information when it was offered to them by the company when they were doing their own investigation, that WorkSafe declined the forensic report.

If that's accurate, it certainly raises the question about why on earth they would decline that information. It may have been totally appropriate for them to take the information, to review the information and to determine that it didn't have value. If they had done that, that would have been fine. I could accept that. But to decline it out of hand raises a serious question.

So we have this problem. What you have here now is this other situation with WorkSafe where there's a cloud hanging over them in relation to why on earth they would make that decision to not disclose critical information that they had and to have not even reviewed the information when it was offered to them from what presumably is a credible company that did this work on behalf of Lakeland, the mill.

The result of this is that at this point you will know that the union — the Steelworkers, who had representation there — made the decision that they believe that the inquest is now fundamentally flawed. They have withdrawn from the inquest at this point. That's a problem, because the families and the workers have no representation there.

I know that the minister has said that's the responsibility of the coroner's counsel. I understand that, but as an example, I would note that when I was there for the opening day, one of the gentlemen who was a longtime employee of the company was up giving testimony. He, of course, was asked to review a number of photos, a number of pieces of evidence that he had not seen prior to coming on the stand.

The coroner's counsel is the counsel who took him through those documents. I would have anticipated if the coroner's counsel was acting on behalf of the families and the workers, the victims, the workers who survived, that there would have been some time to sit down and to have given this gentleman the opportunity to see and review those materials prior to being asked to comment on what those photos were and particular aspects.

That's problematic. I don't think there was anything malicious about this, but it just is a problem. It is a deficiency in that process, because those families and those workers don't have counsel that represents them. They don't have anybody who is committed to ask the questions that they want asked and to get the answers that they want. That is problematic. We have that situation.

One of the things around the accidents themselves that motivated Bill 9, this particular piece of legislation…. This gets to, I think, what has been talked about as some of the structural weaknesses that have been exposed at WorkSafe B.C. here. I think the evidence was showing that there were clear inefficiencies, as WorkSafe identified in their review, around conduct and around the adequacy of how they addressed a number of items to control dust.

The levels of combustible dust were there. There didn't appear to be any prior enforcement from WorkSafe B.C. to deal with this. There was a failure to identify those hazardous levels of combustible dust ahead of time, and there of course wasn't enforcement.

This is particularly concerning in the Lakeland situation. Babine was a shock to everybody when it happened in January. We all understand that. But the day before Babine occurred, as we heard in the testimony at the inquest, there was a major fire at Lakeland, including a fireball that went 30 feet into the air and a major effort by all of the workers at the mill, at Lakeland, to get that fire under control.

We were told by one of the senior operators there of the head-rigs…. They said only one of the two head-rigs was operating. That's the reason that they don't think they had a full-blown explosion at that time. If both of them had been operating, the amount of fuel…. The situation would have been different.

This occurs. The next day after that, the Babine explosion. The question you have to ask yourself is: at what point here does there have to be a report on that Lakeland incident — the accident, the fire — knowing that there was an explosion the next day, and how is it that there weren't WorkSafe inspectors all over that mill almost immediately to ensure that we weren't looking at a comparable situation to what happened at Babine? But there weren't. There weren't, and that's troubling. That's troubling however you cut it.

We have this challenging situation as we see it there. It's particularly challenging for the families and for the victims.

I'm sure that the minister has spoken to the families and to the workers. She will know — I certainly know from discussions I had with some of the workers there — that they are far from recovered from this. Who knows whether they will ever fully recover, not only from their personal trauma but the reality as well that….

I can see in their eyes…. As they said — talking to one of the workers saying: "I worked for 30 years, 25 years with Glen Roche, one of the gentlemen who died, and I'm not quite sure why I'm alive and he's not. There will always be that feeling." He talked about how when Mr. Roche was brought out of the explosion, the terrible shape he was in and the struggles they had to get emergency vehicles in to be able to get Mr. Roche to proper medical facilities, and how eventually…. I think it was a fire warden or a superintendent who took Mr. Roche in his own vehicle to try to get him some care. Obviously, sadly, he succumbed.

The families are not feeling confident about this process at this time. We all have to stay aware of that. There are regulatory processes. There's independence of the inquest in the coroner's office, and we all have to respect that, but we also have to respect the families that feel pretty alone in this whole process today. There are those, and the victims who were other workers, who feel alone in this process. I'm not sure that we are paying as much attention to that as we need to.

That all resulted in, as the minister says, the Macatee work and Macatee's report, the WorkSafeBC Review and Action Plan. That WorkSafeBC Review and Action Plan led to a number of things and led to Bill 9.

What we know in Bill 9…. As the minister said, it deals with a number of factors, but it deals with some critical — four or five — core pieces. It introduces a new compliance agreement system, where employers who violate the act can promise WorkSafe that they will fix the problems and at that point, with the proper commitments, escape a fine or an order at that time, providing they proceed.

That's a good thing, but what we're going to need to talk about when we get to committee stage is what happens if they don't comply. There aren't specific consequences addressed in the legislation itself. These are consequences that, presumably, if they're there, will be addressed in the regulatory regime that will complement the legislation.

The challenge for us will be to try to draw out…. I'm hoping the minister will be able to talk a little bit about what her thoughts are and what the scope of those consequences are for a company that makes a commitment on a compliance agreement and then chooses not to proceed in a full and thoughtful way to fulfil the objectives of the compliance agreement.

The bill encourages on-the-spot ticketing, as the minister said, of up to $1,000. Now, in my understanding, that's different from administrative fines of half a million dollars plus or so. This is presumably the opportunity for a WorkSafe inspector to get somebody's attention by writing them a $1,000 ticket in the hopes that that gets their attention to actually proceed with some action.

For a large company, it's obviously a negligible price. But we will have to ask ourselves, and we'll have this discussion, about how the $1,000 amount was arrived at and why the government and the minister anticipate that that becomes a reasonable deterrent or punishment at the early stages. Obviously, there are the bigger fines down the road if you come to those. Why is that a deterrent or a punishment, if it's deemed by an investigator that that's necessary?

The legislation also talks about stop-work orders and injunctive powers, which have been expanded to allow WorkSafe to go after employers who continue to ignore or breach WorkSafe rules. Some people would have called this the Arthur Moore clause. For those who don't know, Mr. Moore has a long history in the asbestos removal industry of hiring people, providing no protection or security, changing his companies on a regular basis and has a long history of exploiting workers around asbestos removal and acting in an irresponsible way.

We know that WorkSafe was never able to get at him. They got at him on a contempt-of-court charge. They've never been able to successfully have him charged or in any way to act on him until they finally were able to get a contempt-of-court ruling because he ignored the courts. That's as close as we got.

Again, there is a whole piece of regulatory regime that relates to this and the effectiveness of the tools that will be required to make this piece stick. I think it's an area that everybody would agree is a good idea, and it's a good clause. The question simply is going to be: can it work? Can it be made to work, and can we be assured that there aren't loopholes that allow people who act in an irresponsible way to get around it?

Those are people that every legitimate, credible and thoughtful employer in an industry wants out of their sector and out of their industry because they just give people a bad name. I know that people who work legitimately in the asbestos removal and hazardous waste materials area, for example, would be happy to have Mr. Moore long gone from that sector, because he does nobody any favours.

The minister spoke about changes to the board of directors. The board of directors are changed under this legislation by adding two new directors. One of those directors is somebody with occupational health and safety experience to add to the list and the second with a law enforcement background. Nothing wrong with these changes. It will be hard to know how they in fact enhance the board, and we'll have to have some discussion about that.

There are a couple of areas that I guess I would note at this point. Again, the minister would know this. We have suggested on this side of the House that there needs to be a stronger relationship — I know that the minister talked about a memorandum of understanding — with the criminal justice branch.

We have suggested that a dedicated Crown prosecutor makes sense, somebody who specializes in the field of employment law and occupational health and safety and can provide direct advice to WorkSafe in proceeding with initiatives and investigations and can also support making sure that the best practices are in place to allow that if charges are warranted, they in fact can go ahead.

There may be a number of ways to get there. The decision was not to do that. I believe that's something that Mr. Macatee, who wrote the report, had some sympathy for — a position that he had sympathy for — but it hasn't occurred.

The second area, and it relates to the board — and we'll talk a little bit more about this as we proceed as well — is concern that has been raised to me that there is, essentially, one workers' representative on the board, who is appointed to the board. The concern is that there's not a lot of worker representation.

It was pointed out to me — and I know that it can change, depending on who the appointees are — that the public interest appointee is somebody who comes from an employer-side background as well. So it would be good…. Maybe the occupational health and safety position is a position where it would make sense that that come from somebody on the employees' side of things, the workers' side of things, who brings special expertise.

As I'm sure the minister knows — because she's spoken to lots of people at the federation of labour and others — there's no shortage of people on the employees', the workers', side who bring particular expertise in the areas of occupational health and safety and could be a good contributor to the board. We might suggest that that would be a good place to at least put a second member on that board to deal with those matters.

The other thing that the legislation does, the other of the key components is that the bill requires two accident investigations to be addressed with reports, one within 24 hours of the accident and one within 30 days. The problem here…. I think the 24-hour one makes some sense, to quickly have the company do an assessment. But there is a question here about whether WorkSafe is downloading its regulatory responsibilities on that broader, more comprehensive investigation.

Some of the areas where there are difficulty and where we've seen difficulty in a number of areas, I believe, with where the government works — we see this in the environmental side sometimes — are around self-policing and self-regulation. Some of the concern that has been raised to me is that that second investigation begins to look like self-regulation.

The question is: why isn't there an independent third party with expertise, like WorkSafe, conducting that second investigation? We'll get a chance, hopefully, to talk about some of that in committee stage as well.

We'll also get to talk a little bit, in a little while, about some of the things that aren't in the report and some of the other challenges that we've seen with WorkSafe moving forward. Some of the key issues that we've seen here as we move through…. I'd like to talk a little bit about some of those issues and some of the sections of the bill.

Again, section 1 of the bill — this is one of the areas that is pretty key, and I referenced this a little bit earlier — is around the notion of injunctions and the ability to injunct employers and prohibit employers and their personnel from carrying on business if they fail to pay fines, if they've contravened the act or a WorkSafe order or if they've continued to be problematic.

That probably works pretty well if the company has few assets, if it's a smaller company that depends on its principal owners and officers. If you injunct them, then that could help to slow down their ability to do business and get their attention, hopefully, to in fact comply with WorkSafe's rules.

However, a lot of people work for very large corporations. They're not in danger of closing. They just set up shop elsewhere. For example, neither Lakeland's nor Babine's owners…. Neither of these are fly-by-night companies. They're both well-established companies. You need to ensure, if these powers are going to work, that they be able to dig enough that they actually have an impact on a company like that, a larger company, if they choose to ignore or not properly adhere to WorkSafe orders.

As we know, what happens with large companies and small companies can be very different. You need to make sure that you're protecting the integrity of the law and those injunctions if, in fact, you're dealing with a larger company.

Again, section 2 deals with the board of directors. As I mentioned, you're adding these two new positions to the board. It raises questions about why the decision was made, and I'll look forward to the minister's explanation about what she believes is the improvement that comes with these two positions, in the sense and necessarily as how they are. They do begin to raise, I guess, some questions about how WorkSafe works. This is probably where we need to have a better and more independent review at some point of WorkSafe.

There are questions here, when you have this one entity which is as complex as WorkSafe is, where it's supposed to write the rules. As we know, because of changes that were made earlier in the 2000s, the board of directors now has essential legislative authority to write regulations, to do things that for most everybody else in government are done by cabinet and by order-in-council. In the case of WorkSafe, they get to write their own regulations, a very different situation than everybody else.

They get to write the rules. They have to ensure that the rules are followed. They investigate and fine employers who break the rules. They're supposed to compensate injured workers, provide vocational and rehab services to those workers and deal with prevention matters, and they do this all at the same time.

These are a whole lot of roles, and there has to be some question. Even though there is a fair amount of resources at WorkSafe, no doubt…. They've got $11½ billion of investments, as I understand, so they've got a lot of resources. But there is a question about whether the complexity of the organization is such that it needs some review as to how it works. That probably requires more than adding two people to the board of directors.

It's a challenge. I certainly have no qualms about somebody with health and safety expertise and somebody with legal expertise sitting on that board. That makes fine sense to me. Whether that actually is a fix for the governance issues at WorkSafe is an entirely different question, and it's not a question that I believe gets answered by adding a couple of directors to the board.

The other area here is around appeal deadlines. These are minor amendments to the procedure for appealing WorkSafe decisions. They enable the government to shorten the time limits applying to appeals for their orders. The problem is that you need to have a pretty assertive approach to the issuing of orders and fines.

With Lakeland and Babine, as we know from the report that WorkSafe did, post those accidents, they didn't deal with dust issues. That was acknowledged. They didn't deal with proper maintenance and upkeep of equipment. The supervisory staff didn't do what they needed to do.

WorkSafe identified in both cases that these accidents were entirely preventable, yet they never were in those places to issue those kinds of orders and fines — at least orders, if not fines — that would have triggered any question around appeals.

An appeals process is good, but you need a system of enforcement in place that works before you concern yourself with appeals, and there continues to be questions around that. I know Mr. Macatee is working on that, and I'm pleased that he's working on that. Maybe we'll see more about that as we proceed. But it is an issue, because clearly, that side of investigation and enforcement has been lacking. It has been lacking, and we need to address that.

The question of the compliance agreements. Again, just to come back and reflect on that, there needs to be a role for enforcement in compliance agreements. We need to be able to ensure that there's a requirement to comply and to see what happens there.

We need to get a better sense, I believe, of a number of those key pieces, whether it's how stop-work orders are going to proceed, how ticketing will proceed, how the administrative penalties will proceed. All of those are things that I believe we'll be able to, hopefully, flesh out to some degree in the committee stage.

We have this situation where we are today. The question then becomes: what happened? What happened at WCB — Workers Compensation Board; still WCB to me — at WorkSafe, that created this situation?

We know that when WCB was created back in 1917, it really was the historic compromise. This was the compromise where no-fault compensation was put in place for workers to ensure that they were protected, that they were compensated; to ensure that there was some protection around workplaces. In return for that, litigation was off the table, and there wasn't court case after court case around accidents.

That makes sense to be able to do that, but to do that, WorkSafe has to play a bigger role than it has put itself in recently. I've had people who are in the sector who would say to me that WorkSafe has become a glorified insurance company for many and that that has been its focus, whereas we know the focus needed to be fair compensation for workers who are injured to ensure that they can continue to support themselves and their families.

Proper rehab and vocational training to allow them opportunities to get back into the workforce, whether it's in their original place of work or if they have to change their occupation — to ensure they have the ability to do that and to move into other occupations. And an aggressive program around prevention to ensure that you protect workers and you hope that they get home when they need to.

The problem is that we have seen a number of changes that don't help with that. A number of things that have happened around this…. Some of these relate to areas that are covered by Bill 9, but some of them also relate to the broader challenge around WorkSafe that is reflected in the problems I think that Bill 9 is intended to fix.

We have seen the effect of the elimination of many of the pensions that people get, and compensation, obviously, is a huge part of what WorkSafe and WCB provides. We've seen a reduction in vocational rehab assistance for injured workers. That's a problem. The appeal processes have become incredibly technical and litigious.

I don't know about other members here, but I know that when I get people who come into my office with WorkSafe and WCB issues, we are very, very careful. We're sending them to workers advisers. If they're unionized, we're sending them back to their unions to get assistance. They're so complex, these cases.

The reality is that if the appeal isn't handled exactly right, they lose that opportunity. They're done. What could be worse than somebody who goes to work, is doing their best on the job, has an accident that is not their fault, and all of a sudden, their life for them and their family is turned upside down because of the complexity and the technicality of a process that they can't get their head around and that they can't get the support for? We need to figure out how to fix that and remind ourselves of what WorkSafe and Workers Compensation was supposed to be all about.

I mentioned pensions before. We know there are real issues about what happens post-65 with people who had lifetime pensions that are not there now. There are issues about the value of that compensation and changes in the value of the compensation. It used to be, before changes that started in 2002….

It was in 2002 that there were a series of legislative amendments that were proceeded with. They came as a result of Alan Winter, who was an employer-side lawyer on compensation issues, brought in by the government to, in fact, rewrite the rules. He did that. He suggested a number of changes that very much, you would argue, were supportive of the employer side. That included changing how people are paid.

It used to be that folks got 75 percent of their gross income. They received a pension. They got 75 percent. The thinking is that you don't pay taxes, so that's pretty much getting your full pay, pretty close to that. Well, they restructured that, and they made 75 percent now 90 percent of your net income. The reality of that result is…. If you do the calculation, it's about a reduction of 13 percent in your benefits. So we reduced the amount of money that people were paid.

Part of what Mr. Winter suggested, part of what was suggested in the acts that were put forward, was that it was about an affordability issue for employers. I understand that. But the people who paid for that were the workers, and they were asked to pay lock, stock and barrel.

I go back to the deal that was done, going back to 1917 and on. The deal, the compromise, was clear. Workers were to receive compensation and have some protection and rehabilitation and, hopefully, some rules that prevented accidents, and nobody was going to sue employers. That was the deal.

Well, the employers continue to have the deal that they don't get sued. But since 2002 — and particularly, 2002 to 2008 — a number of changes were brought in the Workers Compensation Act, when it was amended by Bills 49 and 63, that created this situation where you now have less money and less support coming.

Also, as I talked about earlier, this is a challenge: the regulation. They've invested a whole lot of power in the board of directors — a board of directors that is essentially appointed by government, that is not politically accountable, and they get to write regulatory rules. They get to practise legislative powers — something others don't get to do.

At least when regulations are written and put in place by order-in-council, if people want to be critical of the minister or of the government, they are being critical of people who have been elected and who can be defeated in an election versus a board of directors at WorkSafe that is essentially anonymous, for all intents and purposes, to the public and anonymous to the people who are most directly impacted by this.

I think that we need to be thinking about how we get about addressing some of those issues. As I said, you need to begin to make changes here, I think, that are broader than what Bill 9 does. We need to make changes that will allow a more full review of WorkSafe. That doesn't take away from what's in this legislation. Some of it's very important. Some of it will provide incremental improvements as we move forward. There is no doubt about that.

But we're not addressing some of the key issues that are in front of us. So one of the things that we will be looking at as we proceed…. I know that some of my colleagues will speak to this bill when we're back up at this tomorrow. They will be speaking to other aspects of the legislation and to what should occur here.

I think that there are a number of changes that we should be looking at and that we'll be getting to discuss with the minister as we move forward on some of these matters. We will be looking at the governance question and talking to the minister in committee about governance.

We will be talking about how that board is comprised, how it's accountable. Whether in fact the reviews that have been done of governance, that have been done by Mr. Macatee in a modest way…. He's done a lot around the particular review related to Babine and the results of Babine and Lakeland. But what should we be saying about the broader governance question, and who should be participating in that discussion?

We'll be talking about compliance. We'll be talking about penalties there. Are the penalties of a nature that in fact provide real deterrence? Are the penalties of a nature that they are more than just the cost of doing business? We know that the vast majority of employers will try to do the right thing. They will work to do the right thing. But not all employers are that way, and it can't simply be the cost of doing business. It's not good enough if the rules around this are such that in fact that's what we're seeing.

We'll talk about the Crown prosecutor and about why there hasn't been a decision taken. It may be paid for by WorkSafe, in terms of the cost of a prosecutor. We know the criminal justice branch is short of money like everybody else. Whether, in fact, WorkSafe should be paying the cost of a dedicated Crown prosecutor — that's a possibility as well.

We'll talk about the issue of employer citations and whether they are effective and whether employer citations achieve the objectives that we want to look at.

We'll be talking about the difference between compliance agreements and rules and orders. When do compliance agreements make sense, and when do rules and orders make sense? Does this legislation in fact get us to the place where it protects workers in a way that is firm enough to be able to accomplish that?

We'll be talking about the memorandum of understanding and how some of that work proceeds to make sure that we end this situation that we have seen time and time again where…. When there have been incidents that deserve a criminal investigation and, potentially, a criminal prosecution, they have not been able to proceed because WorkSafe, by the nature of its investigations, has in fact created a situation where there's so much inadmissible evidence that the criminal justice branch won't proceed.

That's one of the areas that this legislation is intended to correct. The question will be: does it create the kind of firewalls, does it create the kind of tools that in fact lead us to be able to have some confidence that in future, when those criminal investigations and charges are warranted, we have not compromised that opportunity because of the way WorkSafe has conducted its investigations? We need to make sure that we are dealing with that.

We need to look at, I think, some of the broader issues, as well, in this discussion around decisions that need to be taken about what other options are, what the next step is. We'll be talking to the minister in committee stage about what happens next and about what her expectations are — as we proceed with changes at WorkSafe, what her expectations are.

Some of that we might do in the estimates process, but some of that we will do in relation to this piece of legislation because this is, obviously, a step forward. It's an incremental step, but it is a step forward that we'll be looking at the minister to give us some advice on as to how she sees this all being addressed and dealt with.

I'm hoping that as we get to this discussion around Bill 9 — I'm pretty confident that my colleagues here will enunciate some of this — we will also have some discussion around some of these other issues. We may find a way to highlight some of those, whether it is the governance questions, whether it is the level of vocation and rehab programs, whether it is pensions and compensation.

We'll hear, hopefully, more about that from people who have many folks who have come to their offices. I know that we all, as members, get folks with WCB, WorkSafe, issues coming in to visit us who are looking for support. Hopefully, we'll get a chance to highlight some of that.

Also, hopefully, we'll get a chance to talk quite a bit about the governance role as it counts to the role, the authority, of the board. I must say I have concerns about the authority of the WCB board to be able to write regulations and how that will occur. Hopefully, we will get to talk about that.

As we go through all of this and we deal with the technical side and with all of the sides of this, I am hopeful that all of us in this House will remember how we got to the place of discussing this piece of legislation and having this legislation in front of us.

It was about two very tragic accidents. It was about four people who lost their lives and the families that will be devastated forever because of the loss of those lives. It's about the other 42 people who have probably had their lives irreparably damaged by being involved in that accident and many others that I can't even begin to understand who maybe weren't on shift at that shift or were friends or family whose lives have been rocked by what happened at Babine and Lakeland.

I know the minister is very aware of this. At the end of the day, as we have this discussion, however Bill 9 proceeds and will pass, obviously — and we will support the bill — we not lose sight of how we got to Bill 9. We have no illusions, no illusions at all, that Bill 9 solves the problem. It doesn't do that. Bill 9 is a step in the right direction. Bill 9 provides some incremental improvements. But it leaves great, great challenges in front of us still with worker safety.

We're coming up to April 28, which is the Day of Mourning. Here very shortly there will be the annual Day of Mourning, where we recognize workers who have died across the province, across the country. I know that for everybody in this House, that's a solemn day. It's a day that everybody reflects.

We need to make sure that Bill 9 is only a step down the road to try to make sure that there are less and less names on those lists every April 28 — less and less people who die, less and less people who are tragically injured and incapacitated. We have the responsibility to make sure that those rules change, and we have the responsibility to take that task on. The agent may be WCB, but the responsibility rests here. We can't allow that to not continue.

With that, I will close my remarks and move adjournment of debate.

https://www.youtube.com/watch?v=EH8GsQ3tNFo


 

events
Saturday, November 16, 2019 - 12:00pm - 4:30pm