In 2002, the provincial government amended the Workers’ Compensation Act. The amendments made it more difficult for injured workers to receive compensation for their workplace injuries.
Earlier this year, B.C.’s Workers Compensation Act was amended.
Significantly, a legislative provision which had attempted to remove the Workers’ Compensation Appeal Tribunal (WCAT)’s power to interpret the Canadian Charter of Rights and Freedoms has now been repealed. Based on a previous Supreme Court of Canada decision, it was very likely unconstitutional anyway. But its removal from the books is an acknowledgment that WCAT indeed has the power to interpret the Charter.
Challenging the WCB
B.C. Workers’ Compensation Board (also called WorksafeBC) decisions frequently ignore medical evidence and lack a rationale.
A recent review of B.C.’s WCB system stated:
At its extreme, it is a toxic decision-making culture if a claim owner … does not seek/consider/weigh evidence of individual circumstances and then say “if you don’t like it, appeal”. At its barest, the first level decision maker does not apply, or seek to apply, the “merits and justice” of the case. …
Appeals require time and resources that injured workers often do not have and should not be required to have in order to get compensation. For many stakeholders the issue becomes – how much justice can you afford? Given the rigors of an appeal process, many workers, and employers, live unhappily with “average justice”, which in their particular cases, does not feel like justice at all.
A case manager may make numerous decisions, each of which must be appealed individually, with different review, appeal, reconsideration and judicial review deadlines. Soon, the result is a web of decisions, reviews, appeals and reconsiderations. It is enough to weaken those of the strongest fortitude.
Recently, in Paleos v. Workers’ Compensation Appeal Tribunal, the British Columbia Supreme Court observed:
The process is a lengthy, complex and inefficient one, which is striking when considered in contrast to the lofty goal of compensating injured workers fairly in a timely and efficient manner, seemingly established by the Act…
In 2016, in Shamji v. Workers’ Compensation Appeal Tribunal, the court stated:
While these separate inquiries may be logical, the fact remain that, in combination, the overall scheme is unwieldy, inefficient, and cumbersome. This is particularly so when one considers that the Act is intended to serve injured workers. …
There is much discussion and concern in the current case law about access to justice, judicial efficiency, proportionality, and like issues…. These important objects should apply with equal force to administrative bodies. Accordingly, they apply to the Act and to the decision-making process under the Act. Those decision-making processes …appear to do little to advance these various objects.
In the words of the B.C. Court of Appeal:
The internal appeal and review provisions of the Workers Compensation Act are convoluted, and in some respects bizarre.
Other cases have referred to the process as “long and convoluted,” “tortured” and a “legal playground.”
Many injured workers are unable to navigate this convoluted system without a lawyer. The WCB does not compensate injured workers for legal fees.
One key problem is that the WCB will not compensate for it’s own poor handling of claims.
So, after years of fighting, even if an injured worker receives the compensation he or she was originally entitled to, there is no compensation for the trauma involved in battling the WCB. There is no compensation for being left in poverty and without necessary supports in the meantime.
Another problem is that in recent years, the WCB does not generally pay interest. So, the Board has an economic incentive to delay benefits.
The Ultimate Law
In recent years, challenging the WCB under the Canadian Charter of Rights and Freedoms was an almost impossible feat.
The Board’s Review Division apparently had the power to interpret the Charter. However, it rarely if ever meaningfully did so. Also, a challenge to the Review Division is the first step in the appeal process. Charter violations may not be yet apparent at that early stage.
By the time the worker gets to WCAT, the violation may be apparent, but based on the previous s. 245.1(q) of the legislation, WCAT would not hear Charter issues.
If the injured worker attempted to raise Charter issues for the first time in court, the court would very likely refuse to hear it.
This all means that in recent years, the WCB was essentially insulated from Charter challenges.
It was only a matter of time before someone challenged the previous s. 245.1(q) as being unconstitutional.
Former S. 245.1 Repealed
Scrutinizing the WCB under the Charter creates the potential that problematic policies may be declared of no force and effect.
There is also the potential that those who have suffered may seek compensation for the harm the WCB has caused them, through an award of damages under the Charter.
We can only hope that WCAT will meaningfully grapple with these challenges, and truly scrutinize the WCB.
It is time to end the madness entailed in B.C.’s worker compensation system.
This is a modified version of a October 4, 2020 article appearing in online publications including the Kelowna Capital News. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.