Fifth Session, 41st Parliament (2020)
REPORT OF PROCEEDINGS
(HANSARD)
COMMITTEE OF THE WHOLE
Virtual Meeting
Friday, July 31, 2020
Afternoon Meeting
Issue No. 2
The HTML transcript is provided for informational purposes only.
The PDF transcript remains the official digital version.
CONTENTS
FRIDAY, JULY 31, 2020
The committee met at 1:31 p.m.
[M. Dean in the chair.]
Committee of the Whole
BILL 23 — WORKERS COMPENSATION
AMENDMENT ACT, 2020
(continued)
On section 17 (continued).
M. Lee: I wanted to come back to some questions on section 17 that I had with the minister before the break. I wanted to ask the minister: has there been any specific analysis done for the impact of the change in section 17 of this bill to LOE awards for mental disorder?
Hon. H. Bains: Hon. Chair, welcome to the chair.
Look, I think I have answered this question. I don’t know how many different times and how many different ways. The answer remains the same. They considered all different illnesses, all different scenarios, all different categories of illnesses, and they came back with the numbers that I have shared for 2½ hours now.
They said that they have considered each of those categories: mental health, loss of limb, chronic pain. You name it. That’s how they came up with these numbers. My answer isn’t going to change.
M. Lee: I also wanted to come back to the “so exceptional” test under subsection 196(1) of the act and the removal of that section by this section 17 of the bill. The minister referred to the current threshold as being 25 percent. The board does exercise some discretion in terms of LOE awards, even though the difference might be less than 25 percent.
How many applications or claims for LOE awards have not been awarded that are under that 25 percent differential?
Hon. H. Bains: I think I’m going to repeat my answer. They considered all of those different scenarios. They looked at claims — accepted claims and declined, what failed in what category — and came back with those numbers. Those are the numbers that I’ve been sharing for the last 2½ hours.
M. Lee: Only to make the comment, so we’re clear, that when we talk about the removal of the “so exceptional” test under sub 196(1), effectively, there will no longer be a threshold or differentiation going from 25 percent to below.
The minister isn’t able to provide that level of detail to this committee in terms of what the impact might be, other than, of course, the overall. But that doesn’t give our review of this bill and this section any understanding as to that potential impact.
I wanted to come back to another point, though, and ask…. Under the current policies of the board…. We’ve talked about sections 195 and 196 as they relate to chronic pain. Is there currently, under the current regime, any ability for workers to receive a loss of earnings award for chronic pain?
Hon. H. Bains: If they meet the current threshold and the exceptional test, yes.
M. Lee: Is there a particular practice directive that sets that out?
Hon. H. Bains: There is a practice directive on chronic pain, yes.
M. Lee: We canvassed this before the break. Is that practice directive C3-1?
Hon. H. Bains: Yes.
M. Lee: Thank you to the minister for that confirmation.
Would the minister please identify where in this practice directive it indicates that workers have the ability to get an LOE award for chronic pain?
Hon. H. Bains: This practice directive has existed since 2003. It gets changed over time. I think the latest…. It was updated on April 6. It’s an eight-page directive. That is prior to Bill 23 being passed here. Once Bill 23 is passed, then they will make the appropriate changes to it.
M. Lee: The minister did not respond to my question and, in fact, has given a response that suggests that there will be further changes to this directive. My question was related to the current regime, dealing with the provisions under 195 and 196 of the act, and this practice directive and the application of the “so exceptional” test.
Again, under the current regime, as represented and indicated in the Workers Compensation Act and the application of practice directive C3-1, as it currently is formulated, as last updated in April, as the minister just confirmed, can a worker receive a long-term loss of earnings award for chronic pain?
Hon. H. Bains: I answered that question before the break. The answer is yes.
M. Lee: The minister has responded to me with reference to an answer before the break. He has also responded to me in the answer after the break. I think those two answers are inconsistent. In the answer after the break, he indicated just now that there would be a change to this practice directive to address this.
Again, where in this practice directive C3-1, as it currently stands, does it set out the ability of a worker to receive an LOE award for chronic pain?
Hon. H. Bains: I’ve been very consistent, before the break and after the break. The question was: under the current policy directive…? That was the question before the break, and that was the question, as I understood, after the break.
Under the current policy directive, can someone with chronic pain be awarded LOE? I said yes before the break, and I said yes after the break. The policy directive flows from the legislation, which mentions the exceptional test. If they meet the exceptional test, then they have been awarding LOEs under the policy directive. I’m just telling you what the current practice is.
M. Lee: I have asked for a confirmation as to where in the practice directive it actually states that. The minister continues to give a fairly general response without answering that question.
Let me ask the question in a slightly different way. We’ve talked, as well, about the specific restriction in the practice directive, C3-1, which limits chronic pain that is permanent and disproportionate to the associated physical or psychological injuries that may be granted permanent disability benefits under subsection 195(1) of the Workers Compensation Act equal to 2.5 percent of total disability.
What are, if any, the limits on an LOE award for the same purpose, under this practice directive?
Hon. H. Bains: The board, to help those policy directives…. Like I said, it’s eight pages. Nothing in that policy directive prohibits the board to award LOE awards for chronic pain. That flows from the legislation, as long as they meet the “so exceptional” test. That’s the policy that they’re following, and I am advised that they have been awarding LOE under that policy directive as we speak, going back.
The Chair: Member, you have been pursuing this line of questioning, and the minister has answered your questions.
M. Lee: I appreciate the response from the minister and your guidance, Madam Chair.
In summary, the reason why I’ve been asking this question is because my understanding is different. The minister, based on the advice he’s receiving, is indicating that that is not the case. My understanding is that there is no ability of a worker to obtain an LOE award for chronic pain. The practice directive is silent on that.
The minister is indicating that these awards are taking place. My concern is, with my understanding, without the explicit reference to anywhere in the practice directive that that is the case, that certainly, the changes under section 17 will increase additional cost in a significant way that’s not currently there.
Let me now turn to another area of inquiry, if I may, and that is relating to timing. Let me just say, before we go there, that the minister has indicated, of course, there are over 1,000 pages of policy. We are just talking about eight pages. The minister is not able to identify within that particular practice directive where this is stated. We don’t have the time, of course, to go through the remaining 992-plus pages of the policy manual.
We have talked about mental disorder, but these are just two areas of the kinds of categories that, in the absence of any clear information coming from the minister about the detailed analysis that’s been done on the various categories of injuries and the impact that section 17 will bring…. This is the challenge for us here at the committee level — to get the correct understanding of the impact of this provision.
Having said that, I do want to go to another part that…. When the minister responded to questions from my colleague the member for Chilliwack, he indicated that there would be no immediate impact in the short term, or a modest impact on premiums for 2020, 2021 and 2022. First of all, to confirm, when will these changes take effect? Will they have any impact on 2020?
Hon. H. Bains: We are going to get to those sections, but I can tell you that under section 37, section 17 will come into effect in January 2021.
M. Lee: To underline the point, then, when the minister refers to that there’s no impact on premiums in 2020 from this section, well, that’s because it doesn’t come into effect until 2021. Is that not correct?
Hon. H. Bains: There are other sections of this bill that will become effective upon royal assent. This particular section comes into effect January 2021.
Overall, with the implementation or the passing of this bill, that’s what my statement was, WorkSafeBC being in a good financial position, having a healthy extra excess on hand and using five years, smoothing out, as they do always, averaging. That’s what I am advised by the board — that as a result of Bill 23, it will not impact the premiums for the employer this year, next year or 2022.
M. Lee: Of course, in this committee session, we’ve been only talking about section 17. When the minister indicated that response to my colleague the member for Chilliwack, I think it’s clear that the minister was incorrect when he refers to 2020. Of course, by definition and by the operation of section 35 in this bill, there is no impact on premiums in 2020 because this provision hasn’t actually come into effect.
If we turn to 2021, I would like to ask the minister what the expectation is in terms of the impact in 2021 operationally, in terms of claims that might arise for LOE awards under this particular section 17 in the first year of operation of this section.
Hon. H. Bains: I think we’re coming back to the same question over and over but asked differently. I have clearly answered this question in the last 2½ hours.
We have estimated that the LOE awards will increase by 25 percent. That’s what the estimation is. For this particular section, the total cost, one time, is $15 million, and the annual cost is $4.5 million. That’s the cost. I have given that answer over and over. The member just likes to continue to ask the same question, and the answer is going to be the same over and over.
I think there are a number of other sections that we need to canvass, going forward, but I leave it up to the member to keep on spending time on this particular one, asking the same question over and over and getting the same answer.
M. Lee: I appreciate, Madam Chair, that you weren’t here for the morning part of this particular committee session today, but I can assure you that I’ve been asking different questions to get clarity on this particular section 17. What I am referring to now, Madam Chair, is timing and sequence and the process around permanent disability awards under 195 and 196.
I would say that the reason why the minister believes the interaction that we’ve been having at this committee level is repetitive is because he’s been giving the same answers. The questions are different. The reason why we’re asking the questions, of course, from my colleague the member for Chilliwack and myself, is because we’re still seeking the clarity.
Just to go through the sequence and processing of permanent partial disability awards: in 2021, in the first year of operation of this section, what is the sequence of…? When a worker has a new claim, and they’re working through the process, and this provision is operational as of January 2021, what is the timing sequence of the periods of time in which that worker may be provided with a temporary award, vocational rehabilitation, as well as, subsequent to that, any consideration around a permanent disability award?
Hon. H. Bains: If the new claim comes in after January 2021, once that particular claim ends up where the decision has to be made, whether it’s an LOF or an LOE, then the new rules will apply.
M. Lee: When does that determination take place for a new claim from work?
Hon. H. Bains: Depends on the claims — the nature of the claim, the nature of injury, illnesses. I think it will go through the process, and it will be determined once the determination is that the claim is plateaued. Some get plateaued earlier than others.
It depends on the seriousness of the injury. Once the claim is plateaued, that’s when they start to determine the PPD awards. Whenever that happens, they make that decision at that time.
M. Lee: I appreciate the response from the minister, in a general sense.
Certainly, as I understand it, PPD decisions and that process wouldn’t take place until the condition of the worker has stabilized. So in the instance, for example, where the worker has suffered a severe back injury that requires surgery, the review of a claim for PPD wouldn’t occur until that worker has had his or her surgery to address his or her back injury.
Again to the minister, what is the average length of time during which a PPD decision or process is initiated, recognizing that there are the temporary awards and the vocational rehabilitation and other steps that have to occur immediately when a worker has an injury?
Hon. H. Bains: These are operational decisions that they will make based on the injuries and based on the seriousness of those claims. The average time is hard to predict, but let me come back to what I said before. They have analyzed all of those scenarios. That’s how they came back with the cost, $4.5 million each year, going forward, and $15 million as the one-time cost.
The total, if you translate that into the premiums, is 4/10 of a cent. That’s how they calculate it. They consider the averaging of how long it will take and when it should be applied. They have come back, having considered all of those areas, and said that there would be an upward cost of $15 million, and, going forward, $4.5 million each year. That’s what the total cost is going to be — the cost of implementing section 17.
M. Lee: I appreciate the response from the minister.
The minister, in his statements relating to Bill 23 on second reading and in this committee stage, has referred to the short term — the first year to two to three years, even. With respect to section 17, as we’ve established, it doesn’t apply in the first year, and it’s not in effect in the second year, which is 2021.
I still did not get a clear answer as to timing but would expect that for the most part…. The minister can correct me if I’m not correct. For PPD, permanent partial disability awards, which 195 and 196 of the act deal with, as amended under section 17 of this bill, that process actually won’t even kick off, for most cases, unless there was an early stabilization of the worker’s injury.
Many of the awards that might be considered under these provisions may well take the board and the worker beyond the first 12 months of 2021, which means that when the minister refers to the immediate impact on employers, for which the costs are not just the premiums themselves, it is somewhat misleading, in terms of the modest changes that the minister is referring to.
The full impact of these changes under section 17 may not be fully realized until you get beyond what the minister has cited in terms of the first initial one to two to three years. What modelling and forecasts and assessment and analysis have been done beyond the initial two- to three-year period?
Hon. H. Bains: I think I’ve answered the question. The board, the experts, have looked at all of those different scenarios. What are they facing next year? What are they facing this year? What are they facing the year after next?
To correct the member, not only are we looking at the claims that will be initiated next year that will fall under this category. There are claims in process right now. They will be decided next year. The new rules will apply there. That’s why they have considered all of the data, the different scenarios and the different ways of looking at it. They have come up with a cost, up front, of $15 million and every year, going forward, of $4.5 million.
Now, again, if that cost isn’t there, so much the better. They are calculating these on the safe side, and they are calculating it the way it should be. The numbers are, I believe, very solid. They’ve done all the analysis, all the different scenarios that the member has been asking for the last two and a half hours. They have looked at everything.
When will those claims be finalized? When will they start? That’s why it costs us $4.5 million every year going forward. There will be claims that will be decided next year. There will be a claim that may be reopened next year.
I think they looked at all of those scenarios. They came up with a cost, and the cost is $4.5 million every year going forward and $15 million up front.
The Chair: Member, the minister has been consistent with the figures. I heard him give these answers this morning as well.
M. Lee: Thank you, Madam Chair. I appreciate that you were able to follow the proceedings this morning as well. That’s very helpful.
Thank you, Minister, for that response.
As I indicated earlier, Madam Chair, the challenge, of course, is not the questions themselves, at least from my point of view. The challenge is understanding the responses to these questions and getting clear information and clarity and understanding, which is the reason why we do this committee stage on this bill, like any other bill. This is a very fundamental section of this bill.
Despite the fact that the minister has provided that response before…. In his response just now, he provided some additional clarification, which is very helpful.
Would the minister please provide a breakdown of the percentage assigned to the categories around…? What is the expectation of the increase in cost that is related to re-openings, under 125, new claims, as we’ve been discussing, and existing claims for LOE awards?
Hon. H. Bains: Let me do that one more time. The reopening of the claims cost is $15 million. I said that this morning a number of times, and I said that again this afternoon. The ongoing cost, the new claims that will be decided after January of 2021, will be $4.5 million every year.
M. Lee: In understanding that, then, the minister is indicating…. If we use the figure $4.5 million as the assessed expected figure for new claims….
Let me ask you this. Is the minister indicating, then, that the same $4.5 million expectation for new claims is the same figure that would arise in the original $15 million, or are there any new claims included in that $15 million figure?
Hon. H. Bains: The $15 million is for the reopening of the old claims.
M. Lee: As we look forward on both…. Let me ask this, then, in terms of…. What is the estimation of the expected increased costs for existing claims?
Hon. H. Bains: Let me give the numbers one more time. For the reopening of the old claims, the cost is $15 million. Ongoing costs for new claims is $4.5 million every year.
M. Lee: I’m trying to get clarity here, because I believe that we’ve been talking about three possible categories. The minister has addressed the reopened claims, potentially, at $15 million and the new claims at $4½ million going forward. I am just trying to get clarity.
What about existing claims? Those are existing claims that, presumably, section 35 of the act speaks to in the transitional provisions of this bill, where claims have been made but not finally adjudicated. What are the increased costs for existing claims as are contemplated in the transitional provisions under section 35 of this bill?
Hon. H. Bains: I think the member probably means section 35, the transitional. The $4.5 million is the cost of claims that have not been decided and going forward.
Interjection.
The Chair: Minister, did you have more to add?
Hon. H. Bains: I think we’ve been talking about section 37, not 35.
M. Lee: Thank you to the minister and his team for that response.
I think, collectively, we’ve been considering the application of both sections 35 and 37. I certainly appreciate that 37 is the commencement, which is the January 1, 2021, date of section 17. But I was actually referring to section 35, and the minister did address that as well. But just to correct the record, then, the $4.5 million, in respect of….
Well, let me ask you this, then. When does the $4.5 million cost start? Is that referring to 2020 or 2021?
Hon. H. Bains: It kicks in after this section comes into effect, which is 2021.
M. Lee: So in that first year, that will be new and existing claims, as we just discussed, by virtue of section 35 — those claims that have been made but not finally adjudicated. That’s 2021.
In 2022, what will be the makeup between new and existing claims in 2022, recognizing that many of the existing claims may well have been dealt with in 2021?
Hon. H. Bains: As time passes, the existing claims that are in the process right now will be fewer and fewer, and the new claims will start. Then the impact will be judged at the time those decisions are made on those claims. But the overall costs continue to be estimated at $4.5 million, going forward, starting in 2021.
M. Lee: I just wanted to bring together some of my concerns that we’ve been discussing at length here, in terms of this particular section and the impact on costs and the assessments. Obviously, my concern and the questions I’ve been raising are around the analysis that’s been done about different categories of injuries.
Specifically, I focused on chronic pain and mental disorder, recognizing that in the first case, around chronic pain, there is a change, at least in my understanding. Secondly, around mental disorder, of course, we have seen year over year, and including in COVID-19, increased underlying factors that would cause workers much challenge in that area.
I wanted to come back with that in mind, then, to using the figures that the minister has been providing repeatedly. When we look at the $4½ million, then…. The minister did acknowledge, of course, that the expectation would be — in the verbal, oral indications that the minister has been providing in answers for our questions — that of the $4½ million, there will be a decrease in percentage when this change is made about existing claims.
In year 2021, what is the percentage breakdown, then, of the $4½ million between existing and new claims?
Hon. H. Bains: Look, it’s very difficult to answer that question.
The member would appreciate that for the claims that are in the system right now, no one knows if they will end up with a PPD award. They may never get there. No one knows. And then how many new will come in? No one knows. It depends on the year. We see the injury rates are going down. Some years they go up. So I think it depends on what’s going on in different industries out there.
Again, I’m going to come back to: the board has looked there, the experts have looked there, based on the data that is available to them. Looking at all different scenarios and all different categories, the cost of ongoing to make these changes is $4.5 million, going forward, every year.
M. Lee: I think the minister’s response is really an encapsulation of the concern.
This is just the tip of the iceberg that we’re seeing here, only because we’ve had the time that we’ve had to go through two examples, chronic pain and mental disorder, and the impact that they might have. When the minister acknowledges that no one knows how many existing claims will actually go forward to a PPD, permanent partial disability, that no one knows, in terms of the new claims, how many might come in on this basis….
I will acknowledge that what the minister has been presenting is the best estimate available. The reason why we’ve taken this time at committee stage is to understand the basis on which the government is proceeding with the proposal of this bill at this time. And of course, what we’ve talked about is the great uncertainty, which is exacerbated, clearly, by COVID-19.
When we’re talking about mental disorder, in particular, for example, no one knows. No one knows the onslaught that many people in British Columbians and workers are facing — the toll, the trauma, the challenge. So on that basis, the minister continues to insist that the impacts of these changes in section 17 are modest. But they’re modest based on an assessment of $4½ million, and I continue to be concerned around this basis, particularly when the minister admits that no one knows.
Secondly, what we’ve indicated here in these questions is the length of time. The minister seems to demonstrate comfort only around the first year to 2 to 3. When asked the question, “What about the longer term beyond year 3?” the minister continues to hold on to this $4½ million estimate, recognizing, in my view and the view of the member for Chilliwack, that there is a huge long-term impact of this change — that those changes will not fully be known until beyond, necessarily, year 3 into 4, 5, 6, into year 10.
Again, how can this government possibly, at this time, present this section 17 in this bill not knowing what is just an estimate of this $4½ million cost, recognizing that to employers — and to the workers, in effect, as well — the cost is far greater than just the premiums, the impact, given the surplus position of the board. That will only last so long, and that surplus, of course, may well be utilized for other reasons during this COVID-19 pandemic and coming out of it — in the new normal, so to speak. So the impact is very severe.
Given the discussion we’re having, how can the minister possibly have any confidence in the long-term impact of this provision?
Hon. H. Bains: I want to thank the member for dismissing the expert advice that I’m presenting. That’s his prerogative.
At the end of the day, I just want to make it clear to the member and others that what we’re talking about here is real people. We’re talking about our neighbours, our sons and daughters, our parents, our brothers and sisters. They haven’t seen any change or any improvement to the benefits in the last 20 years, under the regime of your government.
Their rights were dismantled from one end to another. The benefits were cut. People were made to suffer. The member for Chilliwack has admitted that. Some of the heart-wrenching stories that we’ve heard in MLA offices come from the injured workers.
You still are dismissive. Your party is still dismissive of those concerns. My suggestion to you, Member, and others…. Those injured workers who have come to your office — look them in the eye and tell them that you don’t believe that the system is failing them. You don’t believe them. The system is fair.
Look them in the eye and tell them: “The improvement that you deserve to improve your health and safety in the workplace — we’re not going to support that.” You look them in the eye and say that they don’t deserve the support that is being provided and proposed under Bill 23. You look them in the eye.
What we have done is look at a balanced approach, as a government should be doing. That was not the case for the last 16 years. A balanced approach so that we don’t increase the costs of the employer at a difficult time but, at the same time, taking some steps to make some changes to improve the benefits and to protect the health and safety of the workers at workplaces.
Those workers, real people, deserve better from you and your party. They have suffered long enough. We’re not going to compromise their health and safety. We’re not going to say no to improving, very modestly, their benefits under the proposal that we are proposing and, at the same time, not increasing the costs to the employers.
The numbers that I have given for the last two and a half hours are given by the experts. They have looked at every one of those scenarios that you have put forward — every one of them. I believe in those experts. I trust them.
You choose not to trust them. That’s up to the member. They can make those decisions. I suggest, for once…. Try to think about those workers who run the economy, working with the employers. They are a key cog in the economic wheel that feeds our daily lives and pays for all the benefits and the social programs that we all enjoy. I think they deserve a little better from all of us. That’s what we are trying to do.
The numbers I’m giving you…. The experts have looked at it. The actuaries have look at it and have put the numbers on it. You choose to dismiss them. That’s fair game. But I’m telling you: those are the numbers.
M. Lee: Madam Chair, with respect, I will say one thing before I respond to the minister’s comments. The previous Chair for this committee did remind the minister that he ought to be addressing his comments through you, Madam Chair. Perhaps that’s something the minister will keep in mind. Or is that something you may wish to remind the minister of?
The Chair: Thank you, Member. Please proceed.
M. Lee: I appreciate the patience which the minister has demonstrated in the three hours of committee debate on section 17 with my colleague the member for Chilliwack and myself. I know that the minister recognizes — certainly, in the case of the member for Chilliwack, in all of the discussions in the past that we’ve had in the House, and of myself as well — the extent that I’ve participated in bill debates, including on this bill, relating to labour legislation.
I think, Madam Chair, you will find that in the course of this committee debate today, I have earlier indicated the importance of ensuring that this Workers Compensation Act works for everyone involved — employers, employees and workers.
The questions that I’ve been raising, as well as the questions that the member for Chilliwack has been raising, relate to the unknown costs and the uncertainty that section 17 and this bill are introducing at a time when we’re in the midst of a COVID-19 pandemic. We’ve already talked through that. The minister agreed at one point — at least, that was his statement — that we should keep politics out of this. I think the minister, Madam Chair, reintroduced that here.
We are talking about this bill. The minister says no one knows how the existing claims may well be impacted here in terms of increased costs, and no one knows in terms of new claims. The minister is not able to provide the percentage breakdown of that $4½ million estimate. Regardless of whether we have any confidence in that estimate, based on the analysis to date by the board or Mr. Parr, there can’t even be a percentage that the minister and his team are able to provide to us in this committee stage debate on this particular section.
I asked the minister whether you can have confidence in this analysis. The minister has answered that question with great passion. I understand his advocacy for workers throughout this province. That’s important. It’s important that we continue to find ways to ensure that this province works for everyone. That includes workers, but it also includes employers. With the additional costs that have been layered on…. We know what those are. In terms of the additional costs and uncertainty that this particular section and this bill will also layer onto employers, we need to make sure that the system is sustainable.
The historic compromise that was there in this province is important. We need to ensure that that compromise is sustainable. So all of the questions that I’ve asked to date on this section, as I conclude my questioning on this section, have been only in the attempt to get greater clarity. At least from my point of view, the minister has not been able to answer with great certainty the questions I’ve been raising, as well as the questions that my colleague the member for Chilliwack has been raising.
We will move on to the other sections of this bill.
Section 17 approved.
On section 18.
J. Martin: Section 18 is changing the determination of retirement age to 63. Can I begin by asking the minister how we landed on the number 63?
Hon. H. Bains: I thank the member for his question. It is to be consistent with the section above, 201(1)(a) and (b). It talks about age 63. All we are doing is adding section (3) and using age 63 there as well. Parr came back with that recommendation as well.
J. Martin: Thank you for that, Minister. The reason I ask the question is that demographics are very different than they have been in the past. Life expectancy is different. Depending on the sector, age of retirement varies considerably. I’m just wondering what type of consideration or analysis was given to the changing demographics in those particular areas.
Hon. H. Bains: Bogyo, who was hired by WorkSafe, came back with a report. He did a bit of analysis on that and found that more and more people at a later age are working now. If we go back to the late ’90s to compare to 2005, the graphs continue to go up. People are continuing to work longer as time progresses.
J. Martin: Thank you for that.
On another matter within this particular section, has the minister analyzed how this change may affect the finances of WorkSafeBC as we move forward, particularly with, clearly, less ability to make projections?
Hon. H. Bains: The board did the analysis and came back to say that they do not anticipate that this change will bring significant uncertainty or fluctuations for employers’ workers compensation costs.
WorkSafeBC applies actuarial principles and practices when setting employers’ premium rates, to smooth out the cost impacts on employers of a variety of factors. They did the analysis, and it came back that there won’t be any significance because of the actuarial, the information that they receive.
J. Martin: Is the minister able to disclose, at this point in time, the anticipated cost of this section over the long haul?
Hon. H. Bains: Look, I think the current legislation allows people to retire past 65. The only thing we’re changing here is when you make that determination.
Currently the determination is made at the time the claim is finalized, and that could be difficult. It is decided based on a default age of 65, but later on, that could change. If the worker could convince the board that their plan was to retire later than 65, those changes then are considered, and the decisions are made based on that.
I think what this will do, if this section passes, is that rather than making a decision at the time the injury is finalized, now the decisions will be made closer to their retirement, which means around age 63.
Materially, there may not be any change. That’s why they’re saying they couldn’t put any cost to it. There may not be any cost.
J. Martin: Can I ask for the minister to walk us through a scenario that would involve the use of this particular section, should it pass?
Hon. H. Bains: Member, the situation could be that a worker is 25 and is awarded a PPD award, and the decision of his or her retirement is made at that time. It’s very difficult for a worker to convince anybody what would be their age of retirement. It’s difficult to explain that they would be retiring at age 65 or 80, 85.
I think that’s why those who are injured at age 63 get to make a decision at that time. They are in a better position to decide, based on the job that they’re doing, the satisfaction they have at a job, their personal needs at that particular time, why they need to continue to work, their own health. I think all of those different scenarios are taken into consideration when the final decision is made.
So that’s why. This will put some fairness into the system that, rather than age 25, that person will now be able to, in real terms, talk about their real retirement age, which could be age 65 or could be past 65. But it will be a better decision, made closer to that retirement age.
M. Lee: Just as we were talking about section 17 and the interaction with the transitional provisions — in that case, section 35 — in this case, for section 18, it’s the later section in this bill, which is section 36, which is a different sort of transitional provision which we will certainly review when we get there.
I just wanted to take this opportunity, while we’re having the discussion on section 18, to follow on with my colleague the member for Chilliwack in terms of a question that he raised around the analysis on cost.
With the effect of the transitional period or provision under section 36, taking that into account, could I ask…? When the minister looks at both provisions together and the impact that it will have, what’s the assessment by the ministry on that cost?
Hon. H. Bains: I gave the answer to the member for Chilliwack. I think when you look at how it will transition, section 18, the board has done the analysis. They came back with a position and said that they do not anticipate that this change will bring significant uncertainty or fluctuations for employers’ workers compensation costs.
They further went on to say that WorkSafeBC applies actuarial principles and practices when setting employers premium rates to smooth out the cost impact on the employer of a variety of factors, including legislative provisions affecting workers compensation benefits. So the board have made that determination.
M. Lee: I appreciate the response from the minister on an overall response. We are asking about the specific section and the impact on costs and on certainty, including for employers. The effect of section 36 is retroactive. Unless the minister disagrees with me, it has the potential to reopen previous determinations that were made previous to the implementation of section 18, if it’s passed.
Again, in terms of working through this bill and various sections that do have cost impact and raise uncertainty…. With that concern in mind, I’d ask the minister what the analysis and expected cost is from the board’s perspective in terms of retirement determinations that have already been made and that will effectively be changed by virtue of the application and operation of section 18.
Hon. H. Bains: Let me read what the board has decided already on this. “A new determination of a worker’s retirement age will not automatically be made on all cases where WorkSafeBC has already determined the worker’s retirement age.” That’s point No. 1.
No. 2: “The transitional provision provides WorkSafeBC with the discretion to make a new determination after age 63 on existing cases but does not require a new determination.”
M. Lee: I appreciate that response and, looking at the provisions, clearly appreciate and understand that it does say “the Board may,” as opposed to “The Board must” in the last section, in section 17. We’ve already had a full discussion around that.
The minister was just conveying statements by the board in terms of how they would apply this section. Is there a further policy directive that has been developed to establish that?
Hon. H. Bains: WorkSafeBC will be developing policy on when to exercise the discretion to make a new determination after age 63, even if the worker’s retirement age has already been determined for their existing benefits. Also, as with all policies, WorkSafeBC will be consulting with workers and employers for their input on how and when a new determination should be made after age 63.
The intention is to give existing disabled workers the benefit of a new retirement age determination after age 63 in cases where WorkSafeBC considers it appropriate to do so.
M. Lee: I will reserve further questions, then, on the application of the retroactive nature of section 36 to when we get to that section. So I have no further questions on this section.
Section 18 approved.
On section 19.
J. Martin: Can the minister share, for the purposes of this section, how long it typically takes for a payment to be made upon the death of a worker?
Hon. H. Bains: Currently it is unclear in the legislation whether the payment can be made upon the worker’s death or if it must not be made until the worker would have been entitled to the benefit at age 65. The purpose, again, of this amendment is to provide clarity. It’s consistent with WorkSafeBC’s current practice, which is to issue the payment upon the worker’s death.
Right now the language is a little blurry. It does not say when the payment should be made. This change clarifies that the payment shall be made at the time of the death, which is the board practice right now anyway.
J. Martin: Am I to understand that the payment will be quicker with the change in this legislation?
Hon. H. Bains: Practically speaking, it will not change much as to when the payments are made, because the board is already practising this policy. This will give them legal authority to continue to do what they are doing, and it clarifies the language in the legislation.
Section 19 approved.
On section 20.
J. Martin: In the Parr report, it said that employers note that “the cap in British Columbia should be comparable to other jurisdictions, and not ‘on the low side.’” How does B.C.’s maximum insurable earnings compare to other jurisdictions?
Hon. H. Bains: This change will put us kind of in the middle of the pack. If you look at Alberta, it has no cap whatsoever. In Saskatchewan, the 2019 number is $88,314. Ontario, for 2019, is at $92,600. Like I said, Alberta has no cap. So moving from $87,000 to $100,000 puts us kind of in the middle of the pack, or close to it.
J. Martin: Going forward, will the board maintain the authority to adjust this cap?
Hon. H. Bains: No, that part of the section will not change. It will continue to be adjusted based on the average wage in the province.
M. Lee: The minister commented earlier, before the break…. My recollection is that there has been analysis on the additional cost of this particular provision. Can the minister please reconfirm that assessed amount?
Hon. H. Bains: The one-time cost impact of this change will be $12 million, and the ongoing annual cost would be $10 million. It can be translated to about a one-cent increase in premium per $100 payroll.
Again, like I said before, the board has done the analysis, looking at their accident fund, and have said that they are in a position to say that the provisions of Bill 23 will not impact employers’ premiums this year, next year or the year after.
M. Lee: Thank you for that response, to the minister.
Similar to the other questions that the member from Chilliwack and myself have been asking, would the minister please provide additional detail as to how that estimate, both on a one-time hit as well as an annual basis, has been determined?
Hon. H. Bains: WorkSafeBC’s actuarial have done the analysis, and they came back with the decision that the projected one-time impact of $12 million recognizes that a certain number of existing claims may be reopened, because of a change in the injured workers’ medical conditions that happen from time to time. That cost is set aside at $12 million. For future claims, the cost would be $10 million a year.
M. Lee: Just in terms of that breakdown…. Thank you to the minister for that response.
Again, we have this discussion about the expectation of the board as to how many claims would be reopened and that not being fully ascertainable. So in terms of that provisional figure, in terms of the initial hit, are there any other components to that estimate?
Hon. H. Bains: Those are the numbers that they have come out with. It is based on the reopening of the old claims. Like I said, it happens under different scenarios, and they have considered all of that. They believe the cost would be $12 million up front to deal with those claims, and going forward, each year it will be $10 million.
Sections 20 and 21 approved.
On section 22.
J. Martin: Section 22 is on compensation to worker injury prior to January 1, 1986. Since this section covers claims made before January 1, 1986, will this allow for decisions to be reopened from that time and re-evaluated under the new maximum insurable benefit?
Hon. H. Bains: It is a consequential change, as per section 20 that we passed. The numbers there will show $11,000 prior to 1986 and $40,000. So the consequential changes are to replace that with $100,000, which we have already passed in section 20.
J. Martin: Can the minister speak to what the costs are going to be to WorkSafeBC’s accident fund?
Hon. H. Bains: There’s no cost coming out of section 22. The costs were dealt with in the consequential changes in section 22, pertaining to section 20. We have already dealt with the cost in section 20. That’s the cost, what we discussed in section 20.
Section 22 approved.
On section 23.
G. Kyllo: Thank you to my colleague for Chilliwack for allowing me an opportunity to ask a number of questions with respect to section 23.
For the purposes of this section, can the minister share, under the current status quo, how many COVID-19 claims have been made with WorkSafeBC, and in what period would he be referencing?
Hon. H. Bains: Thank you, Member, for your question, and thank you for coming on.
This information, Member, is available on the WCB website. It’s available anyway, but I’ll give it to you. As of July 22, a total of 715 COVID-related claims were filed. I can give you a bit more information. So 310 were allowed out of those — 218 out of those were from the health care — and 243 were disallowed.
G. Kyllo: To confirm, 310 of the 715 claims have actually been approved for the period through till July 22. As a bit of a follow-up to the minister, is there currently an opportunity, for those claims that have been denied, for those individuals to appeal with WorkSafeBC to see that their claims are revisited?
Hon. H. Bains: With or without a presumption that the board has looked at it, all claims are appealable, Member. They go through the system, the review board, and then they end up at the WCAT. So they are appealable.
G. Kyllo: Thank you to the minister for that answer.
Can the minister provide just a bit of clarity? For the claims that have been rejected, what would be the process and the timing for an individual to appeal a rejected claim?
Hon. H. Bains: The worker or the claimant would have 90 days to file an appeal from the date of the decision.
G. Kyllo: If the minister could also just provide a bit of context…. An individual who has had their claim rejected would have 90 days to file an appeal. I’m just wondering about what the timeline would be and what the process would be for that worker who has had their claim rejected — what the process would look like when they file the appeal and what timing it may be before there’s a final determination on whether their appeal has actually been approved or denied.
Hon. H. Bains: It’s a normal process of appealing a decision of the board. They will follow that. As I said, initially they have 90 days from the date of the decision to appeal to the review board.
Once the review board gives their decision, then they have 30 days to appeal to the WCAT, and the WCAT will hear it. Then the WCAT has to deliver, or there is a guideline that by a hundred and some days, they must deliver their decision. That’s the process.
G. Kyllo: Thank you to the minister for the answer. Again, could the minister provide just some further clarity? What I’m trying to look for is in a bit more context.
If a claim has been rejected, and an individual files an appeal claim, what would be the estimated time before they would have a final determination? Is there a set limit so that WCAT, in their final determination, would have to provide an answer back to the individual within six months, 12 months or 18 months? What would be the timeline for a typical appeal process to be concluded? What would be the longest time it might be for an individual who has filed an appeal process before they have a final determination on an appeal request?
Hon. H. Bains: To the member: I could give you those numbers. But to be clear, and considering the timeline available to us, this section has nothing to do with your questioning.
I could give you the numbers. Like I said, a claim is filed. If it’s rejected, then the member will file for the review, and then it will take some time for the review board to set up that schedule. Then within 150 days, the review division must deliver their decision. Then within that decision, if it needs to go further, they have 30 days to appeal to the WCAT. Then the WCAT has 180 days to deliver their decision. You can add all that up. It could be quite lengthy.
This section does not talk about those things. This section is only talking about this: if the WCB makes a decision that COVID-19 should be considered as one of the presumptions — which they have done, I’m advised — then there is a requirement, under the act, that they must wait 90 days in order to implement that decision.
All this section does is give them the ability to eliminate those 90 days. Once they make that decision at the board level that COVID-19 type of pathogens can be considered as a presumption, which they have done at this time for COVID, they don’t have to wait 90 days. That’s all we are doing: enabling them to eliminate those 90 days. Then they can start helping those people who are impacted by COVID-19 in filing a claim.
G. Kyllo: Well, I think the timeline is very important. My understanding is that moving towards a presumptive cause would provide an opportunity for the worker to receive benefits immediately from WorkSafeBC, that funds would be flowing to that worker, and then WorkSafeBC would make a later determination of whether the claim is going to be approved or, potentially, rejected. The timeline is important because wages will be paid out to that individual for a lengthy period of time.
The minister has indicated that that could be quite a lengthy process. I’m just trying to get a bit of clarity. Should there be a presumptive cause accepted with respect to COVID-19, I’m just wondering what period of time a worker could, at the outset, potentially receive payments or benefits from WorkSafeBC before they come to the determination that their claim has been rejected. Is this only 30 days or 90 days of pay?
If the appeal process, in WorkSafeBC’s determination on reviewing it…. If that could span a year or two, I think it’s very important. I would assume that a worker that might have filed and received benefits under a presumptive cause for COVID-19 would not want to find out a year and a half later that suddenly their claim is rejected, and they have a huge liability, which they have to pay back to WorkSafeBC. This could be creating a huge financial burden for an individual, potentially.
Can the minister provide some clarity around the timing by which a final determination would be undertaken, either under the existing legislation or…? I guess the longest period of time may be before there’s a final determination should the presumptive cause, the actual, passed as proposed in this legislation….
Hon. H. Bains: I think, Member, to help you out…. That’s not how the system works. I think what you’re referring to is a section that we already passed, which was prophylactic treatment and preventative treatment under certain circumstances, which the board already pays under their policy today.
The section that we already passed will basically give them…. It will be legal authority to continue to do that. You don’t get paid until your claim is accepted, as the member has suggested. Those were medical treatment, psychological or other treatment and the support that a worker may need under those circumstances, which we canvassed at great length under the previous section.
I think that the claim…. Workers will not continue to be paid for a year, a year and a half, until the appeal system is deciding their claim is accepted or not accepted. The claim will be accepted; then the wages are paid.
What the member is probably mixing up is the preventative treatment and the support, in certain circumstances, that they need. For suicidal tendencies, for example, psychological support is provided. That’s what that is. Then the claim will be either accepted or rejected.
G. Kyllo: Thank you to the minister for that clarity. If I could ask for some further clarity, then.
If a worker contracts COVID-19 and there has yet to be a determination of whether that worker contracted the virus either at work or at home — I would assume, when the worker files a claim with WorkSafeBC, should this legislation pass, with respect to the presumptive nature of COVID-19 — what would be the timeline for that worker to actually receive benefits while they’re away getting treatment and recovering from COVID-19?
If you could just provide some clarity with respect to what the current process would be for a worker that makes a claim for COVID-19 and how that would be different — assuming that the presumptive cause is actually passed as presented in this legislation.
Hon. H. Bains: Maybe I could clarify it for the member. “Presumption” means that the board has already made their decision that COVID-19 will be considered as a presumptive disease. This means that the worker who files a claim impacted by COVID-19 doesn’t have to go through the process of proving that it’s work-related, but, again, the diagnosis has to be there. Once that is done, the board will make a decision to start to provide them with the treatment.
I think the claim will be accepted sooner. Then the treatment will start, and the worker, hopefully, will be able to go back to work sooner, which would help the worker and the employer. Also, I think — Member, maybe this would help you — generally speaking, once the claim is filed, it takes about three weeks to a month to make the final decision on claims as to whether they’re accepted or rejected.
G. Kyllo: Thank you to the minister. So the board has made the decision that COVID-19 is a presumptive cause. So whether an employee contracts the virus at work or otherwise, the determination will be that that worker is eligible for WorkSafeBC benefits? If the minister might be able to just confirm that that is the case.
Hon. H. Bains: The board has made that decision. This section has nothing to do with that, with what the board has done.
Again, coming to the member’s concern and the issue he is raising, presumption means that COVID-19 will be considered work-related, unless it is proven otherwise. The onus of proof is reversed, but still the claim will be decided based on the merit. If the claim is filed, it will be presumed to have happened at work. How they come up with that is a board decision. We could check into that.
If it’s decided that somebody caught it when they were on the beach with 100 other people out there, and someone saw a video of that…. The board sees that. I think that claim would be rejected.
If there is no proof that it is not work-related, then it would be considered to be work-related.
G. Kyllo: Thank you to the minister for that, I think, clarity.
Could the minister share an incident or an example of where a worker could contract COVID-19, have his claim approved yet find out, six or nine months later, that the COVID was actually obtained from another source? What would be the process in that instance?
A claim is initially approved under the presumptive cause. A worker is paid out wages for a number of months, along with the associated treatment costs, hospitalization costs, whatever it may be, and then finds out, six or nine months later, that, indeed, the COVID-19 was not attained at the worksite. What would be the process that WorkSafeBC would go under to retrieve those expenditures and dollars that might have been paid out to a worker inadvertently?
Hon. H. Bains: This is no different than any other claim — for example, someone filing a claim for a bad back. A claim is accepted and then, later on, found out that it wasn’t work-related.
There’s a process in place to recover the overpayment. Again, there is a process to recover an overpayment when the board decides that they made a wrong decision and they lower the award for the claimant.
The decisions are made, in the beginning, when the claims are accepted. They look at the evidence. If they have evidence that it’s not work-related, the claim will not be accepted. I think that process, at this particular part of presumption that the board have decided on their own, does not change any of that. Those processes and those resources, and the mechanism, already exist with the board.
G. Kyllo: Can the minister share…? With respect to the 310 claims that were allowed — which, I believe, leaves a difference of about 405 claims that were not allowed — is the minister able to provide any clarity on the reasons why those claims were denied? What was the rigour behind the determination that they were not accepted as work-related?
Hon. H. Bains: First of all, I think that I should correct the member with the numbers. So 243 claims were disallowed. One of the reasons was that they could not back it up with the medical evidence. The other one was that they did not test positive; the result came back negative. So those are a couple of reasons.
G. Kyllo: Of the claims that have been allowed, is the minister able to share how many of those claims have been concluded — under which WorkSafeBC would make the determination that the worker has recovered fully and is back to work and the claim is, for the most part, finished — and how many claims are ongoing? Then, as a follow-up to that, is the minister able to share any information, with respect to any claims that are ongoing, if there’s any reserve that is set aside for potential ongoing issues that may be related to the worker contracting COVID-19?
Hon. H. Bains: The answer is, out of the…. The information I have is that 310 claims were allowed. Considering that it takes a short time to recover from COVID-19, generally speaking, we expect that most of them are recovered and back to work. WorkSafeBC has not set aside any special funds for this. They’re treating them just like other diseases and injuries that come their way — and treat them as such.
Now, Chair, if I may, the people around me are asking for about a five or ten minute break, if that is okay with you and the members.
The Chair: Minister, we’ll be taking a break in about five minutes to be changing over the Chair. So perhaps one more question before we recess.
Hon. H. Bains: Fair enough.
G. Kyllo: We’re certainly hearing lots reported in the media about the concern of underlying conditions associated with COVID, the potential impacts on different organs — heart, lungs. I’m just wondering. In light of what the medical profession is saying, in the case of some individuals who contract COVID-19…. There are underlying conditions that may not arise or they may not be aware of for a number of years ahead.
Just to provide a bit of context, I’m just looking for some clarity for a worker that has obtained COVID-19. How is WorkSafeBC determining when those cases are basically concluded? It would very much surprise me if WorkSafeBC is not giving consideration to any form of reserve fund that may look after future implications that may arise down the road for some of these workers who have contracted COVID-19.
If the minister might just be able to provide a bit more clarity with respect to any reserves or any consideration for future ongoing costs that may not arise for five, ten or 20 years down the road with respect to the negative consequences associated with an individual who has contracted COVID-19.
Hon. H. Bains: Look, I think that WorkSafeBC looks at a variety of different diseases, injuries, that come over the years. I’ll gave you an example: asbestos. There’s no special fund set aside for asbestos exposure, but that’s what the accident fund is all about. The accident fund is set aside, and they have decided to fund it to 130 percent. That is to weather some of the bad economic times — that 30 percent additional.
Going back, asbestos is a good example. At one time, it wasn’t taken very seriously, but now almost half or more than half of the deaths that the WCB pays per year are a result of asbestos exposure that happened ten years, 20 years ago. That’s what the whole purpose of having this accident fund set aside is. This will be dealt with through the accident fund.
Bad backs are another example. People come in, and it looks pretty simple sometimes. But it could be a lifelong ailment that the worker may go through and never go back to work. All of those are considered.
That’s why the accident fund is set aside. That’s what the purpose of the accident fund is. They deal with it just like other claims. Yes, some of them will be serious, and others may not be serious as a result of this pathogen.
The committee recessed from 3:55 p.m. to 4:06 p.m.
[S. Chandra Herbert in the chair.]
The Chair: We’re here, of course, discussing the Workers Compensation Amendment Act, Bill 23. We are, as it happens, on section 23.
The member for Shuswap on section 23.
G. Kyllo: Thank you very much, Mr. Chair. Welcome to the chair.
Just before the break, the minister had given reference to asbestos and mesothelioma, which accounts for nearly half of the work-related deaths annually in our province. I know that the minister, in giving his last remarks and in referencing that, gave an indication that the additional 30 percent — so the 130 percent reserve — is there to look after some of these underlying conditions, which may not necessarily be known or well understood, when a worker contracts a potential illness.
As that relates to COVID-19, there’s much uncertainty yet what the long-term implications may be. I’m wondering. I think it was back in 1986 when WorkSafeBC initially came to recognize the significant negative impacts of asbestos on workers and with respect to mesothelioma.
Is the minister able to share with us what the percentage of the worker accident fund was back in 1986? Was it 130 percent in 1986, or is that a number that has actually grown over the years to, in part, take into consideration some of these underlying conditions associated with different either viruses or underlying health conditions associated with mesothelioma and other causes?
Hon. H. Bains: Look, I think the board, up until a few years ago, didn’t have any minimum, 130 percent. They were funded much higher than 130 percent. Then they decided that they needed about 130 percent.
Member, I have no clue what the funds were in 1986. Different times, a different industry and, I think, different legislation to deal with, from time to time.
The point I was trying to make is that the WCB is well set up, through the accident fund, to deal with emergencies such as COVID-19. They have sufficient funds available to them in the accident fund to deal with it. All the previous, current and future claims of different nature.
G. Kyllo: I appreciate that the minister respects a need for fact-based decision-making.
What I’m trying to have a better understanding of is: what was the determination that the additional 30 percent was sufficient to cover all of the uncertainties around underlying health conditions? Through this legislation and with COVID-19, we now are presented with a new virus, something we do not have a lot of details on. What future ongoing medical costs may be associated with dealing with underlying conditions associated with COVID-19?
I think it’s very important, as we look at this, to ensure that WorkSafeBC has been diligent in ensuring…. They just can’t assume that the 30 percent, which might have been sufficient pre-COVID…. That 30 percent number was there, and a reasonable number to look after all other work-related health issues. Now we are presented with a new pandemic, a new problem that is going to have ongoing medical conditions in the case of some individuals that have contracted COVID-19.
We have no certainty, at this point, on what those costs may be. So I’m assuming that anybody who would be prudently looking at this would have to make the assumption that we need to have additional funds to look after the ongoing costs associated with a new virus — something that is new to WorkSafeBC, new to the world.
That is the question that I’m trying to see if the minister can provide some clarity on. There will be additional costs associated with COVID-19, many costs which may not be understood or known for many years down the road. The minister has made comments that COVID-19 will not result in any increased premiums to workers or to businesses across the province, to the employers. I’m just really having a hard time understanding how the minister can make that claim knowing full well that COVID-19 is something new.
It is a new condition. The costs associated with addressing and providing rehabilitation for workers that contract COVID-19 are not fully understood at this time. I would suggest to the minister a prudent measure would be to set aside additional funds or to look at increasing the percentage in the accident fund in order to take into consideration those additional cost burdens that may be more than looking after these injured workers in years to come.
I’m just hoping that the minister can provide some additional clarity around the surplus percentage that has been set aside to allow for underlying conditions, on existing medical conditions, related to workers in our province.
The Chair: I’m happy to let the question stand, although I would ask that the member try and relate questions a little closer to the sections that we’re discussing. We’re on section 23. So if it’s possible to relate questions more closely to the legislation, I would appreciate it.
Thank you, Member.
Hon. H. Bains: I appreciate, Chair, your reminding that the questions should be relevant to section 23.
How the determination is made, whether the accident fund should be at 130 percent, is a decision made by the board and only by the board. They have an actuary on the board, and the board has their own team to look at what is needed to pay for their past, current and future claims, including for COVID-19. They have, within the system, different arrangements to deal with specialized areas of concern that may come up from time to time. So they are well placed in order to deal with financial situations, dealing with special circumstances, as COVID-19 is.
I’m fully confident that the decisions that they’re making — as far as their finances being prudent and carrying through their fiduciary responsibility as board members — are solid.
G. Kyllo: I’ve got a lengthy series of questions to ask.
I just wanted to provide some clarity. This particular section — in my view, certainly, and those of my colleagues — is going to have significant cost pressures on WorkSafeBC. That is why I feel it is definitely pertinent to this section to have a better understanding of what rigour has gone behind trying to determine what the full costs of COVID-19 may or may not be. The minister previously indicated that of the 715 COVID-19 claims that were filed as of July 22, 310 were accepted. That’s about a 43.6 percent approval rating, and those costs are based on a very small number of COVID cases.
I think we can all recognize that B.C. has fared extremely well. Certainly, taking the advice of senior health officials, B.C. has done better than most jurisdictions in North America. There are jurisdictions that have over ten times as many cases as we’ve had here in British Columbia. Although we’ve been very fortunate to only have the 715 cases that were presented to WorkSafeBC, with an acceptance rate of only 310, that could quite easily be ten times the number.
There are concerns about a second or third wave. We have no ability to look into that crystal ball and have a determination on what future costs may be with the number of claims or how long it may be before a vaccine is actually created — in order to, hopefully, put COVID-19 out of our vocabulary. In the interim, the costs associated with COVID-19 claims are very significant.
The minister has indicated that there are processes within WorkSafeBC in order to deal with claims, but I would suggest that the potential magnitude of COVID-19-related WorkSafeBC claims is extremely significant. Although COVID has only been with us about five months now, I certainly would hope that WorkSafeBC, with their actuaries, are having a significant look at what the potential costs of COVID-19 may be on current claim costs associated with workers that have been directly affected, on the potential liability for ongoing long-term health costs, as well as on what might happen.
I know we don’t have a crystal ball, but I’m assuming that WorkSafeBC must have done some work to date. We certainly want to see governments and large Crown corporations like WorkSafeBC making fact-based decisions.
Again, one more time to the minister, with all due respect. Is the minister able to share with us the estimated cost that WorkSafeBC has identified associated with WorkSafeBC claims, current and into the future? What reserves, if any, have they identified may be needed in order to look after these health-related costs and worker impacts associated with COVID-19?
Hon. H. Bains: I think, again, Mr. Chair, I would draw your attention to section 23. What section 23 does is allow the board to waive the 90 days. That’s all it does. This section does not make the decision of whether COVID-19 should be considered as a presumption or not. That decision is made by the board.
The board has looked at their fiduciary responsibility and has done calculations, as I’ve said before, looking at what they’re facing as far as this pandemic is concerned. Then they went out and did the consultation with the stakeholders, shared that information, came back and decided that they will make that policy change. They will consider not only COVID-19 but, going forward, any pathogen that they may come across in the future. They will have that ability.
What this section does is…. The requirement that after they make the decision, there is a 90-day waiting period…. They have the ability now to remove those 90 days and start dealing with those claims, based on their new policy, immediately. That’s all it does.
Even if we don’t have the 90 days in here…. The claims will be accepted on a presumptive basis 90 days later. That’s the only difference here, through section 23. We are simply giving them the ability to waive the 90 days so that people who are suffering, who end up going to work sick, can stay home and get treatment in a timely fashion and so that the transmission of COVID is stopped, as well, or minimized. The person impacted by COVID-19 is treated in a timely fashion and can get back to work and be a productive worker again. That’s why.
They looked at it. They have an accident fund that is sufficiently funded to pay for all claims in the past, current, including COVID, and going forward. Their mandate to have that fund under that 130 percent is there, plus some. They are in very good shape to deal with the challenges that we’re facing today or in the future.
G. Kyllo: Thank you, Minister, for the clarity.
The minister actually referenced in his answer that WorkSafeBC has done the work on determining and identifying what the potential cost of COVID-19-related cases may be. Is the minister able to share those numbers with us here today?
Hon. H. Bains: Member, I can read you the discussion paper that the board produced when they were consulting about the presumption. What they have said here is this:
“Adding a presumption to schedule 1 of the act would ensure WorkSafeBC would not be required to produce or analyze similar evidence of work-relatedness in every case. However, occupational disease services advises they do not anticipate an increase in the number of allowed claims or costs as a result of a presumption being added to schedule 1 for COVID-19 or other related diseases, although there may be an increase in awareness for coverage which could result in an increase in the number of claims made.”
I think they have looked at different scenarios and at the situation at hand. That’s what they were discussing and consulting the stakeholders about.
G. Kyllo: Thank you, Minister, for that.
Again, if I could ask: what is the dollar amount that WorkSafeBC determined or identified as the potential cost, either the costs that have been borne to date with respect to COVID-related cases…? This is of the 310 accepted cases. What have been the costs associated with those 310 cases to date? And if WorkSafeBC has taken into consideration, additionally, what ongoing costs may be associated with those 310 workers?
Then the other piece is…. This, again, comes down to the financial costs associated specifically with section 23. What are the potential ongoing costs? What numbers has WorkSafeBC taken into consideration in trying to determine the future costs associated with COVID-19 and, I guess, with specific reference to this section, with that 90-day waiting period that is now being waived?
Hon. H. Bains: Again, this section talks about removing the 90-day waiting period. There’s no cost attached to it.
G. Kyllo: Can the minister share what the dollar figure associated with those COVID claims is? The minister references that there will be no additional costs associated with this reduced 90-day waiting period. I really have a hard time understanding how that would be the case. Of the total claims that have currently been submitted, of the 715, there are only 43.6 percent that have actually been accepted.
Is the minister indicating, with this 90-day waiving of the timeline, that somehow the acceptance ratio will not, in any way, be affected by this particular section of the legislation?
Hon. H. Bains: These claims that have been accepted were accepted before the presumption came in. The claims were filed before the presumption came in. By waiving 90 days, all you’re doing is…. Now there’s a presumption test in place for the claims that come in after the policy is made. Now the treatment will start immediately, rather than waiting 90 days.
The claims are being accepted. They were accepted before the presumption. But that’s not the decision made under section 23. That’s the decision that was made by the board. All we’re doing is removing 90 days. Whatever the cost is for presumption, whatever the board did, and whatever they number they have decided to do, that’s their decision, not part of Bill 23.
They made that decision. They have considered…. I’ve read you their discussion paper. They made that decision. All we are doing is removing the 90 days so that the people who are impacted by COVID-19 now get treatment immediately and can get back to work sooner than later. I think it may save some money, in some instances.
G. Kyllo: As a bit of a follow-up to that, the minister, in referencing and quoting in his last answer, indicated that WorkSafeBC’s rapid review had stated that there was an increase in awareness for coverage, that it could potentially lead to an increase in the number of claims made. Can the minister provide any detailed information on that increased number of claims that might be made, on what potential costs that may have on WorkSafeBC?
Hon. H. Bains: Again, I draw the attention of the member to section 23. The question that the member is asking is what the board has done, what the board has decided. That’s their decision. Section 23 does not talk about whether we are making a presumption or not.
That discussion paper was about presumption. That was their prerogative. They made that decision. Section 23 is only removing the 90-day waiting period. If the member has any questions about the 90-day waiting period, I’m prepared to answer them.
G. Kyllo: We’ll move on a little bit. For the purposes of section 23, can the minister share how long a short-term-disability claim typically takes to pay out, according to WorkSafeBC’s 2019 annual report?
Hon. H. Bains: Mr. Chair, with a great deal of respect, I think that question belongs at estimates. We are talking about the annual report of WorkSafeBC. That has nothing to do with section 23.
The Chair: Member, please draw your attention to section 23 in terms of the questions that the member is asking.
G. Kyllo: Thank you very much, Mr. Chair. It may be a bit of a stretch, but what we’re trying to get to is what additional costs may be incurred or associated with WorkSafeBC and potential pressure on premiums associated with the legislation that’s put before [audio interrupted] being here today.
I’m going to just move on a little bit. The minister previously, in one of his answers, gave reference to this particular section somehow, maybe, providing an opportunity for workers to have financial incomes so that they’re not going to work sick. Now, I know that the minister and the Premier have been working with the federal government on looking at provisions for sick pay. I’m just wondering if the minister might be able to share with us….
For the EI sick benefit, my understanding is that it takes roughly ten days, or half the time, in order to pay out. I’m just wondering if this may further be shortened by the federal government for their $19 billion that has been dedicated to various recovery initiatives and if the minister might think that WorkSafeBC’s proposal would be more effective than the federal government’s proposal.
Hon. H. Bains: Again, the question has nothing to do with section 23. The federal government’s sick leave, what is happening there and the impact of $19 billion have nothing to do with what we are talking about here.
All we are talking about under section 23 is enabling WorkSafeBC, with their decision that they have already made, to remove the 90-day waiting period. That’s all this section talks about. It has nothing to do with sick leave or a federal aid package.
G. Kyllo: What I’m trying to understand, with all due respect to the minister, is the need for the COVID-19 presumption, given that there is a national sick day program that is in the works, which, from our understanding, would plug many of the gaps with respect to sick day coverage for those who do not have coverage currently.
In my estimation, I certainly believe that it is valid to raise the question. The presumptive nature of COVID-19 is put in place for a very specific purpose, which the minister has referenced. I’m just trying to get better clarity.
In reference to the national sick day program that is in the works and currently underway, does that not negate, in some fashion, the need for moving forward with this 90-day relief on COVID-19 with respect to WorkSafeBC claims?
Hon. H. Bains: Bill 23 has nothing to do with, or is not even related to, the national sick pay initiative that is being talked about.
What the board did…. They reacted to a very, very serious pandemic that they were facing. They were dealing with claims coming in as a result of COVID-19. They made that decision, on their own, at the board level.
What we are doing is giving them the ability to remove the 90-day waiting period, which comes after they make the decision. That’s all we are doing here. It does not replace the sick leave. It’s totally different, dealing with work-related diseases, dealing with work-related injuries. That’s what the board’s mandate is.
That is not for debate. That’s not up for debate. The workers should be looked after when they are sick at work or when they are injured at the workplace. They get the treatment in a timely fashion.
That’s what the board’s responsibility is. They’re carrying that responsibility with the decisions that they make at their level. All we’re doing here is helping speed up the system that they have initiated on their own so that they don’t have to wait 90 days to help people who are impacted by COVID-19 and have to file a claim.
It has to be work-related. It is coming out of the work. It is a diagnosis, as such. The board made the decision that unless it’s proven otherwise, it is considered to be work-related. I think that’s all there is.
The Chair: The member for Vancouver-Langara.
M. Lee: Thank you, Mr. Chair. Welcome back.
I just wanted to continue the discussion. The minister mentioned the Labour estimates and where the appropriate questions might arise. Obviously, we’ve had an opportunity to discuss at length the COVID-19 presumption and what that will look like. Given that the Labour estimates occurred before Bill 23, we’ve had the occasion to talk about that.
The member for Shuswap is certainly raising important questions. Whether they belong in the Labour estimates or belong here, the point is that this has been an ongoing process with the minister and this government.
As we discussed, the minister and I, at Labour estimates, in terms of the sequence and timing of the interaction between the Premier and the minister, statements that were made at the Surrey Board of Trade, indications and communications with the WorkSafe board and, as we see now, the way that Bill 23 was tabled in the House on July 20…. That tabling of this bill that we’re discussing at committee here occurred just two days before WorkSafeBC took its final decision to put in place a schedule 1 COVID-19 presumption. That took place on July 22.
To the minister, at the time the minister tabled this Bill 23 in the House on July 20, how confident was the minister that the COVID presumption would be passed by the WorkSafe board?
Hon. H. Bains: To the member, the board makes those decisions independent of me or the ministry. That’s their responsibility under the act. They acted within the confines of the act that existed even prior to we taking over government. They were using the provision of that act, and that’s the act that we have inherited. Within that act, it gives the board certain responsibilities and authorities. They make those decisions independent of the minister.
I was working to look at all the different reports that came my way, and then we put them together through Mr. Parr to consult, and Mr. Parr came back and made those recommendations. We took some that we thought were reasonable at this time, and we did not go ahead with some of those costly ones.
Our timeline was our timeline, and the board’s timeline was their timeline. I wasn’t privy to the knowledge of how the decision of the board would be made.
M. Lee: We spent some exchanges at the Labour estimates talking about the independence of the WorkSafeBC board. The minister did confirm, though, that there had been communication with the board, subsequent various junctures at the end of April, after they made certain considerations at the board level. So, clearly, there has been interaction between the board and the minister in respect of COVID-19 presumption.
Keeping that in mind, does the minister agree that the tabling of this Bill 23 — and I understand the actual date was July 14 — in the House a full eight days before the board took its final decision by resolution would indicate the minister’s and the government’s approval of a COVID-19 presumption to be put in place prior to the WorkSafe board making its final decision?
Hon. H. Bains: I think the member has made a number of assumptions, and I think they’re wrong. The board worked independently of me or the government when they decided to put COVID-19 as schedule 1. They’ve made their decision. Once they made their decision, then they informed me.
We had discussions. The Premier and I had discussions — we canvassed that during the estimates, yes — to talk to the board. How do we restart the economy? What can they do? How can they help to make sure that when the [audio interrupted], and how would they help to put together the guidelines? How can they coordinate the PHO’s orders so that the businesses that are reopening or working will continue to comply with the PHO and so that WorkSafe can help them with sector-specific guidelines?
I think that’s what the board did. We’re appreciative of that, but to suggest that somehow we influenced the board to put COVID-19 as schedule 1 is wrong.
M. Lee: I would say that the so-called assumptions that the minister believes that I’m making are only premised on the statements that the minister has made, which are set out in Hansard, going back to June 26 in Labour estimates. In the course of that exchange, I read out the quote that the minister didn’t dispute, which is the statement that was made at a Surrey Board of Trade town hall event on April 29.
“The Premier and I met with, along with my deputy minister…. We met with WCB to see how they can help us in this particular area. If someone acquired, you know, COVID out of work, what is WCB’s response to…that?
“So the WCB board met, and they prioritized the situation and said: ‘Look, if they’re impacted by COVID-19 at work, they file a claim, and then we will look at it. If we…make it as a presumptive, you know, they don’t have to prove going to the doctor, getting a note, and then the claim will be accepted.’”
I will say that when I continued on with that discussion, the minister clarified that the communication and the sequence of the meeting between the Premier and himself, including the deputy minister with the board, happened after the board met on April 16 and then made a subsequent determination on the 20th that they would accelerate the process. These are the statements that intertwine around the minister’s and the Premier’s communication with the WCB board, the WorkSafe board.
We see a pattern here — a pattern of public statements that the minister has made at the Surrey Board of Trade and a reordering of the order in clarification response to questions raised at Labour estimates — such that regardless, there was a meeting that took place between the Premier, the Minister of Labour and the deputy minister on April 22.
As the minister stated in Labour estimates, it was at that meeting “…after the board advised us that they were moving ahead on the COVID presumption to deal with the pandemic that we are facing at workplaces. So that discussion and a number of issues were discussed. How are we going to help each other? What role can WCB play? We needed to make sure that we’re all moving in the right direction and that in the areas that are of concern to move and restart the economy.” It goes on.
That is consistent with the general comment that the minister described in terms of his communication to the board in terms of restarting the economy and all the other necessary worker safety guidelines to be dealt with and the supports from WorkSafe for our workers and employees. But clearly, there was a joint coming together of assistance between the government and the WorkSafe board to support, directionally, what was an adoption of the COVID presumption. That is the pattern that was established, certainly back at the end of April, as confirmed by the minister in our estimates discussion.
When I ask the question here relating to this section 23 as to the sequence, again, of this bill making the change to eliminate the 90-day period, which effectively prejudges and assumes that the board will come to a final decision on making COVID-19 a presumption, does the minister not see how this can be perceived as interfering with the independent working of the WorkSafe board?
Hon. H. Bains: The dates that the member has mentioned clearly, clearly show that the board made the decision before they advised us. They made that decision on their own. Then, after they advised us, we met with them. The dates are clear, so the member is trying to stretch the truth here. That’s fine, if that’s where the member wants to go. I don’t want to develop too much on that.
I’m going to clarify once again. The board made the decision on their own to put COVID-19 on schedule 1 — on their own. Then they advised me as a minister. When the Premier and I met was the later part of April, after all of that. That’s when we asked them: how can we help each other? How can they work with PHO, and PHO work with the board? The pandemic is hitting us all. It is hitting the industry. Workers are laid off. Industry is shut down. How can they help the workers who are hurt, who are contracting COVID-19? What plans do they have? That’s the discussion we held.
The member can continue on, on this, if he wishes to, but let me say this. Section 23 talks about removing the 90-day waiting period once the board made that decision and has nothing to do with what the member is talking about. If he feels that there’s somehow a perception, he’s wrong. I don’t see any conflict here. The board made the decision on their own.
In fact, I can read you a statement by the board. It says: “We do not consider that this amendment applied any government pressure on WorkSafeBC on the COVID-19 presumption. WorkSafeBC undertook and led the review of a potential COVID-19 presumption on its own initiative. WorkSafeBC’s board of directors made an independent decision to approve the presumption.” That is a fact. That’s the way it happened.
Section 23 talks about only removing the 90-day waiting period. That’s all.
M. Lee: Just to say, at this juncture, that the proposed amendment under section 23 of Bill 23 is a continuation of the pattern of influence that I think the record actually shows in terms of the Premier and the Minister of Labour exerted on the WorkSafeBC board. We have a discussion here in terms of a sequence of that.
I would say that the final decision, of course, was not made until July 22. The Premier and the minister met with the WorkSafe board on April 22, as confirmed by the minister in Labour estimates. The report on which this decision was based in part was tabled at the end of May.
What WorkSafeBC indicated to the Premier and the minister is that they were moving ahead on COVID presumption. Well, moving ahead, based on the record and based on the resolution that the board passed on July 22, was this. In the recitals to the resolution, it stated: “Whereas on April 20, 2020, the board directed the policy regulation and research division — PRRD — to amend schedule 1 of the act on an expedited basis to add a presumption for COVID-19 and similar diseases…the evidence-based practice group conducted rapid reviews of the expert medical and scientific research relating to COVID-19, SARS and H1N1.”
Of course, that report, that review that was conducted on an expedited basis, which we’ve covered before, typically takes 18 to 24 months. It was expedited, just like, in effect, the signal from the government by this section 23.
It’s these signals that the government has been sending to the WorkSafeBC board to get on with it. This is the reason why the board accelerated its review in the face of a lack of evidence. This is what this discussion paper demonstrates — that there is a lack of scientific and medical evidence demonstrating that COVID-19 is contracted in the workplace. The board, curiously, has left that out. It made reference to the rapid review of expert, medical and scientific research but does not state the conclusion of that report.
It is in that sequence that, clearly, there’s a perception of conflict here, a perception of influence, that the Premier and the Minister of Labour unduly influenced the review by the WorkSafe board. The latest indication of that is the tabling of Bill 23, including this section 23, in advance of the final decision by the board.
When we’re dealing with perception, that is something that…. As we know, as members of this House, conflict is categorized in a variety of ways. But certainly, perception is a component. It’s an important component to maintain the trust and the confidence of British Columbians in how we conduct our affairs.
I would have expected that the minister would appreciate, the way the record demonstrates itself and indicates, that there’s a real concern here — a real concern that the government unduly influenced the decision of the WorkSafeBC board.
Again, I ask: does the minister not see that with this section 23, in the way that it has been timed and the way that it has been brought to this House, is further indication that the minister is getting unduly and inappropriately involved in the day-to-day affairs of WorkSafeBC’s board?
Hon. H. Bains: Member, you have not made any case to back up what you are suggesting. The board made their decision April 16 to proceed with the decision that they made. There’s no indication — or you have not come up with anything to show — that I met with them before that date.
They advised me, I believe it was April 20 or 22, that they had started to move in that direction, and then part of that is going through the consultation process. We met with them after they made the decision. How the bill is introduced into the House depends on a variety of different reasons. The House Leader decides when the bill is introduced, based on a number of other factors.
The member is making all kinds of assumptions. There was no influence. The board made the decision on their own, independent of the government. He continues to try to stretch the truth, and that’s his prerogative. But I can tell you, and this is factual, that we did not influence the board about putting COVID-19 on schedule 1. They made that decision on their own.
The Chair: Thank you, Minister. Of course, responses are through the Chair.
The member for Vancouver-Langara, and I would remind, on section 23.
M. Lee: Thank you, Mr. Chair. I certainly appreciate both of those reminders. We actually cited your first reminder earlier, when you were out of the chair. But I appreciate that you are chairing this process well.
I wanted to just come back to the minister’s comment that I’m stretching the truth. Certainly, the minister and I can disagree about my viewpoint, my concern. I would suggest that that is the appropriate response that the minister could provide to me.
In terms of stretching the truth, though, that is, in a word the minister used earlier, in a different response to me in his estimates, baseless. I am merely going through the record.
Just to go one step further on this, when the minister, or anyone in this House, looks at the resolution that was passed on July 22 — with the acting chair, Lee Loftus, certifying a copy — it includes clearly that the effective date of schedule 1 will be October 26, 2020. The resolution is effective October 26, 2020. This resolution that brings this into effect, by the board resolution, was duly passed at a meeting of the board held on July 22, 2020.
The minister can take us back to the exchanges I had with him in estimates where he actually reconfigured his statements that were made at the Surrey Board of Trade on April 29 to indicate a different record and sequence. The minister has taken that opportunity to do so on the record, in Hansard. I’m not here to debate further the way and the manner in which he did that. But I would just say that the exchange that I had with the minister only demonstrated that there was a confluence of activity there around the end of April.
That certainly predates the report that was tabled that demonstrated no scientific or medical evidence to support a COVID presumption on an expedited review basis and the sequence in which this bill and this section 23 were put in place and brought into the House. It’s on those bases that I am making these statements and these concerns known.
I will just say one other point here. I know the minister has received several letters from industry and employers throughout the province in respect of this bill. The minister would likely have seen this letter that we received a copy of from Carolyn Campbell, the executive director of Concrete B.C. She makes the comment in respect of this particular section 23.
“You signal to the WSBC board of directors your support for a COVID-19 schedule 1 presumption by enshrining in the act the option to remove, in relation to a regulation relating to an occupational disease caused by a communicable viral pathogen, the requirement for a minimum of 90 days between the deposit with the registrar of regulations and effective date.”
How does the minister analyze this point when you take into account the lack of independence of the board of WorkSafeBC in making the decision when stakeholders are calling into question this process?
Hon. H. Bains: I think our record is clear that there was no influence. The board made the decision on their own, and they made it based on what they were facing. COVID-19 hit us all. They were starting to get claims, so they made a decision as part of their duty.
I just want to restate it again. They made the decision independent of the government, as they should, and they did. The member can continue to assert that somehow the government pressured the board. That is not correct.
What we were doing here was in anticipation that if the board made that decision, if they would go ahead…. We had no clue whether they were going to make that final decision. We didn’t know which way they would make that decision. In the event that they did, this would enable them to waive the 90-day period. That’s all section 23 does.
M. Lee: That completes my questions on section 23, unless there is anything further. I know that the member for Shuswap has some further questions.
G. Kyllo: I’m just going to move on a bit, with a few questions with respect to consultation.
To the minister: if you might be able to provide some information for us on how many submissions were submitted to WorkSafeBC regarding their discussion paper for COVID-19 presumption.
Hon. H. Bains: I, as the minister, or our ministry aren’t involved in that consultation. It was the board. They took the initiative. They did the consultation. They took the input, and then they made the decision on their own.
G. Kyllo: From that answer, can I conclude that the minister was not privy to or paying attention to or following up with respect to the consultation that was undertaken by WorkSafeBC regarding the discussion paper on COVID-19 presumption?
Hon. H. Bains: My answer was in the context of section 23. The board has a process to follow themselves. That is to make decisions, do the consultations and make final decisions.
If I asked them, they would provide me with the information, in detail, about how many, who they consulted and how they consulted. That’s not what I was answering. I’m answering in the context of section 23, why we are giving the ability to the board to waive the 90 days after they make that decision.
G. Kyllo: Is the minister able to share with us…? Did his ministry receive any communications from different industry associations or directly from individual businesses in the province, specifically with respect to the waiving of the 90-day period?
Hon. H. Bains: I got a July 20 letter from a number of employers, and their representative mentioned a concern about the board’s decision to move ahead on presumption about COVID-19. Also, they mentioned the government’s intention to waive the 90 days. We received that letter, yes.
G. Kyllo: Is the minister able to clarify…? Is that the only correspondence that his office or ministry received with respect to the 90-day waiving with respect to COVID-19?
Hon. H. Bains: To the best of my recollection, I think that was the one letter we received. There may have been some follow-up after that, but I don’t recall them mentioning the 90-day waiving in other letters.
G. Kyllo: Thank you for that.
Just with respect to the consultation that was undertaken directly by WorkSafeBC, did the minister have any conversations with WorkSafeBC with respect to the breadth of the consultation that was going to be undertaken? I’m just trying to get a better understanding if the minister’s office was aware of the consultation that WorkSafeBC was undertaking and if they provided any input with respect to the depth or breadth of the number of groups that would be consulted with respect to the COVID-19 presumption.
Hon. H. Bains: In the letter to me, April 20, the board chair advised me of this:
“The WorkSafeBC board of directors has directed the policy, regulation and research division, PRRD, to add COVID-19 to the list of diseases in schedule 1 of the Workers Compensation Act on an expedited process. The PRRD will work with WorkSafeBC’s evidence-based practice group and clinical services to determine the appropriate disease descriptor and associated process, trade and industries to be covered.
“Consultation will include the policy and practice consultative committee, PPCC, and an abbreviated consultation with external stakeholders in recognition of the importance of having the presumption in place as soon as possibly. PRRD will be notifying the PPCC shortly about this project being added to the policy priority workplan.”
That’s basically it. Then it says, “If your office has any questions about the project or process,” to please feel free and contact them.
G. Kyllo: Can the minister provide some clarity with respect to the list of stakeholders that were consulted through that process?
Hon. H. Bains: I’m advised there’s a huge list that WorkSafeBC goes through when they do the consultation. I don’t have that list, but they have a quite extensive list. That’s what they do to try to cover all stakeholders — industry workers, others, whoever is on that list.
G. Kyllo: With specific reference, is the minister aware…? Were municipalities or First Nations actually consulted through that process?
Hon. H. Bains: Again, like I said, it’s WorkSafeBC’s process. They have a list. They do consultation from time to time — any time they need to do that to change policies. They have the list, I presume, that you are talking about. We could confirm whether that is on the list or not, but it’s their list. They use the process on a regular basis whenever they want to do the consultation to determine the policy and policy changes.
G. Kyllo: I would assume that the minister would be very interested to know, especially in light of UNDRIP and DRIPA, that the ministry would be providing direction to WorkSafeBC to ensure that First Nations communities were consulted with respect to the development of this proposed legislation, as well as municipalities. Municipalities — a significant portion of their operating costs are, indeed, wages, and WorkSafeBC is also a significant cost associated with that.
For a bit more clarity, is the minister able to advise or give any indication whether there was any communication with WorkSafeBC specifically ensuring that WorkSafeBC reached out to both municipal governments and First Nations communities and First Nations leaders through this consultation process?
Hon. H. Bains: Again, hon. Chair, with all due respect, section 23 talks about removing the 90-day waiting period. The process that the member is talking about is a process that the board, on their own, decided: through consultation, to make a decision on whether to make COVID-19 a presumption or not. That was their decision.
Again, I would give the member an answer to that. The fellow from the city of Surrey — Sam Chauhan, the manager of their health and safety — is on the PPCC. Therefore, the municipalities are covered.
G. Kyllo: I appreciate the minister’s answer. What I’m getting at or trying to convey or find out, both for my colleagues and for British Columbians…. In light of the very important legislation around UNDRIP and DRIPA, there were some very bold statements made with respect to how they would conduct themselves in consultation with First Nations governments and First Nations communities.
As well, I think there’s a long-standing tradition where our local governments also are in partnership, in many ways, with the province of B.C. I was just trying to get some clarity on whether the minister saw fit or saw it worthwhile or worthy of actually directing WorkSafeBC. The consultation is extremely important, I think, as we can all recognize.
I’m just trying to clarify if the minister gave any direction to WorkSafeBC to encourage them to make additional efforts, with respect to consultation, directly with First Nations communities and local governments.
Hon. H. Bains: Again, reminding the member that we’re talking about section 23, the process he’s talking about and referring to is what the board has done, on their own, as to whether to put COVID-19 as a presumption or not and what process they used in order to reach that decision.
My expectation is that government agencies will follow whatever consultation process is required. Whether it’s the municipalities or First Nations, I don’t direct them. They make those decisions. We expect them to make sure that the consultation process is robust and that they consult all those concerned.
G. Kyllo: As the minister indicated in his answer, it is important that the consultation be robust.
Again, I guess I would take it that there were not additional concerns or interests of the minister to ensure that WorkSafeBC double down on their efforts in light of the new, recent UNDRIP legislation. WorkSafeBC is an arm of government, a Crown agency for which the minister has responsibility. I’ll take it, from the non-answer, that the minister did not give direction to WorkSafeBC to ensure that First Nations were consulted with respect to this specific legislation.
Just going back, with respect to my inquiry about the number of letters that the ministry may have received, the minister recently indicated that in his recollection, there was only one letter. Can the minister confirm that he would have also received a letter expressing concerns, criticizing the presumptive measures, from Concrete B.C.?
Hon. H. Bains: Hon. Chair, I’m not sure what letter he’s referring to. I have not seen it. That doesn’t mean that the letter isn’t in the system, but I can’t recall seeing that letter. I’m not even sure which letter the member is talking about.
G. Kyllo: I just received a note with a bit of clarity with respect to the amount of concerns that businesses may have raised directly with the minister’s office.
I’ve actually just been made aware that apparently, on July 20, there was a letter specifically criticizing the presumptive measures as set out in this bill. That was sent from Concrete B.C. Additionally, on July 21, there were two different letters, again expressing significant concerns, specifically with respect to the presumptive cause of COVID-19, from the Canadian Home Builders Association and also from Western Pacific Enterprises.
I just learned this myself but wanted to add a bit of clarity, in that there were a significant number of concerns expressed to the minister.
Going on, if I may, I’m just wondering…. With respect to the responses that were received through the consultation process — this is my understanding, based on a July 20, 2020, letter — 92 percent of respondents expressed significant concern and were against the proposal in WorkSafeBC’s discussion paper.
In light of this information, what was the purpose of having this section to ease the passage of presumption when there was such a significant amount of opposition and concern raised with respect to the consultation?
Hon. H. Bains: Again, I think what the member is suggesting is what the board did or didn’t do, what they considered and what they didn’t consider.
The board works independently of the minister and the government. They make those decisions. They do the consultation, and then they make decisions accordingly. That’s something that the board did. The board did the consultation, the board received the information, and then they made their decision. That’s them — independent of us. That’s what the board did. That wasn’t the consultation that I did or that I directed the board to do. It was the board’s decision to move ahead with a certain decision — the consultation and then the final decision.
G. Kyllo: Just kind of a last follow-up. Before I ask the question, I want to take this opportunity to thank the minister for taking the time to answer the questions that are being canvassed here today.
This’ll be my last question. It just has to do with the consultation, where we see consultation being undertaken by the WorkSafeBC board, a Crown organization for which the minister ultimately has responsibility. I certainly respect the independence of the WorkSafeBC board. However, in light of that, I can only assume that the minister must take his position extremely seriously.
I’m just wondering what the minister might say when the board is making a decision that — in light of the information that’s been provided to me, certainly — indicates that there is overwhelming, 92 percent, opposition to the proposal. Yet the board made a decision that was in the exact opposite direction of the majority of those that were consulted.
How is it that the minister can stand here today and move forward with this proposed legislation, knowing full well that it’s not supported, in large part, by the majority of the business community? How can the minister weigh the huge and significant opposition — at the same time that there’s a duty, I believe, as a minister who has ultimate responsibility for the Crown organization, to do what is fair and what is just — especially in light of the pandemic that is having significant anxiety and causing significant cost pressures on businesses?
We are going to see significant business failure rates. We’ve certainly spoken before about the need for businesses to be successful and of the request of many business organizations asking government to do no further harm, to put no further uncertainty and cost pressure on the backs of B.C. businesses.
It’s probably more of a statement than a question, but I’m really having a hard time understanding how the minister can look to moving forward with this particular legislation, knowing full well that it will do harm and put additional cost pressures on businesses that are struggling for survival at this very critical time.
With that, I will conclude my comments, and I’ll turn it over to my other colleagues.
Sections 23 and 24 approved.
On section 25.
J. Martin: Can the minister please provide an example of when WorkSafeBC would have pursued a third party if they’d had these powers previously?
Hon. H. Bains: This is to provide tools to WorkSafeBC to collect unpaid premiums by certain employers. Again, like I said, the majority of employers pay their dues on time and are good employers. There are some, a few, who sometimes have a habit of not paying on time or not paying at all.
What this one will do is strengthen WorkSafeBC’s hands and give them additional tools. If a third party owes money to that particular employer who hasn’t paid their dues, the board now can go to that third party and ask them to pay directly to the board rather than paying to the employer who is delinquent in paying their dues. I think that’s what this one will do.
J. Martin: Thank you for that, Minister.
Can the minister share whether his office has done any analysis on if similar tools have been used to pursue small and easier-to-target debtors rather than large enterprises?
Hon. H. Bains: These tools are available, if it passes, to WorkSafeBC to collect the unpaid dues using this process, regardless of the size of the employer.
Like I said, the majority of the employers are good employers. If everyone pays their premiums, this will not even come into use by WorkSafeBC. But for those who don’t, then these are additional tools that WorkSafeBC can use to collect. It is not only fair that they pay their dues but also not fair to the good employers. They, at the end of the day, end up picking up the unpaid dues by some of the employers that don’t pay on a timely basis or don’t pay at all.
I think it’s a fair system. It’s bringing fairness into the system. It’s creating a level playing field so that the good employers don’t end up subsidizing the bad employers.
J. Martin: Will this tool allow for third parties to be pursued for outstanding debt as a possible first course of action?
Hon. H. Bains: Maybe I could draw the member’s attention…. The proposed provisions are modelled closely on existing third-party demand provisions in the Employment Standards Act.
Parr, when they did the consultation, reported that WorkSafeBC advised them that if the changes were implemented with respect to collection powers, there would be careful oversight on the use of these powers to ensure they are used appropriately and consistently.
J. Martin: Is this going to have any impact on the ability of non-profits and charities to recruit and appoint directors?
Hon. H. Bains: Under this section, the answer is no. But I think the member is maybe mixing the section that is coming, which is section 27.
J. Martin: With this provision, does the board need to pursue the employer first before third parties?
Hon. H. Bains: Yes. The answer is yes. The board will try to collect from the employer first, and when they fail to collect, then they will use these tools to collect from the third party.
Section 25 approved.
On section 26.
J. Martin: On section 26, what is the purpose for striking out reference to section 255 in the new language for subsection 256(2)(a) per this section?
Hon. H. Bains: The purpose of section 26 is to expand the current powers or ability of WorkSafeBC to collect unpaid assessments from successive employers — for example, when an employer closes one business down and opens a new legal entity that is, in effect, the same business.
The current provision of the act enabled WorkSafeBC to collect on monies owed from a successive employer. However, there is a view that under the current provision, an unpaid assessment can be levied on successive employers only for the year in which the change in business ownership took place.
The rationale behind this is that the proposed new provision will make it clear to WorkSafeBC that assessments can be collected from successive employers and are not limited to the year in which the change in business ownership took place. The change addresses the concern and recommendations raised by Mr. Bogyo, reviewed and endorsed by Mr. Parr.
Section 26 approved.
On section 27.
J. Martin: How much does this expand the authority of WorkSafeBC to collect unpaid fees from subsequent owners and directors?
Hon. H. Bains: I think that question probably belonged to the section that we already passed. Section 27 talks about the director’s liability. I think the member raised this earlier on. What I’ve already said in the previous section is that it just clarified the language so that the successive employer…. It expanded the authority of WorkSafeBC to collect from successive employers, not only in the year that the change in ownership takes place.
J. Martin: Has the minister done any analysis of the pressures of collecting assessments from larger businesses compared to small businesses, non-profits and social service agency boards?
Hon. H. Bains: I just want to clarify. Is the member talking about section 27, director’s liability? That’s the section we’re on. If you have a question pertaining to director’s liability under section 27, please clarify.
J. Martin: Okay. Thank you for that, Minister. We’ll rephrase this.
Has the minister had input from stakeholders regarding how this may affect the recruitment of board members for many of those types of groups?
Hon. H. Bains: Look, these provisions should not discourage qualified people from becoming corporate directors. Director’s liability for corporation’s debt already exists in federal legislation and other provincial legislation such as the Provincial Sales Tax Act and the Employment Standards Act, and corporations are able to attract directors.
If the corporations pay their dues on a timely basis, they should have no issue with this at all. I think this just puts extra incentive on those few employers who don’t pay, and that directors, knowing that they could be held liable, will ensure that the corporation will pay their dues on a timely basis so that all the good employers aren’t left to pick up the tab and subsidize these bad employers, which are few.
M. Lee: I just wanted to raise a question relating to sub 251.1(3) in terms of the due diligence test that is set out there.
I note that on page 29 of the Parr report, which tracks the language in the equivalent legislation in Quebec, section 323.3, there is an additional alternative in terms of the so-called due diligence defence for directors, which is tracking the phrase “or could not have been aware of the non-payment of assessment.”
Why did the government not follow the recommendation of Mr. Parr?
Hon. H. Bains: Thanks to the member. The intent behind this section is the same as what Parr has recommended, but we used language that is similar to other legislation in British Columbia. If the directors exercise care and due diligence, then I think they are covered under the intent. I think that’s what the intent is behind this language as well.
M. Lee: Would the minister agree, then, that the words “could not have been aware of the non-payment of assessment” are actually subsumed by the directors exercising care and diligence and the skill that a reasonably prudent person would exercise in comparable circumstances? That is, if a director is exercising due care and attention and skill, of course they would be aware of the non-payment of assessment.
Does the minister agree that effectively, that is subsumed within the test that is set out, then, in subsection (3)?
Hon. H. Bains: The member read subsection 27(3). I’ll read it again: “A director is not liable under subsection (1) if the director exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances to prevent the corporation’s failure to pay an amount owed to the board.”
I think the intent is the same with what the member was reading. Again, how individual cases will be dealt with is a legal question. I think different arguments can be made at different times. But I think the intent is that if the director does what is listed in (3), then I think they’re safe. The other part is that if the corporation pays its dues, no one should worry about it.
M. Lee: I just wanted to take this opportunity just to reconfirm, given that we’re in a section dealing with director liability and responsibility, as we’ve discussed through the course of this committee process….
In terms of Bill 23 and the expected costs of the impacts, when I look at the Parr report, it indicates, when you come to section 4 of this bill, seizure and search powers, that the potential costs would be 2/10 of one cent. For section 17 — we’ve had extensive discussion here, in the committee process — Mr. Parr indicates on page 36 that that would be, potentially, 4/10 of one cent. For section 20, which we did touch on as well, in conversation with the member for Chilliwack and myself, that would be two cents.
This puts aside the estimation that Mr. Parr provides on section 18 equivalent, on retirement age adjustment, of five cents. If we put that aside, does the minister agree that in terms of the changes proposed under this bill in sections 4, 17 and 20, it amounts to 2.6 cents per $100 of payroll?
Hon. H. Bains: I don’t know what that has to do with section 27. We’re talking about director’s liability.
We have canvassed, at great length, the costs of the total package. The total package cost is…. I gave the numbers before. It translates to 1.4 cents for this package, the Bill 23 package, per $100 payroll. There is a breakdown on which section of this bill costs how much. There’s four-tenths of a cent in one section. There’s one cent in another section. Everything else, when you put it together, is the total cost.
We talked about the total one-time cost and then the ongoing cost. I think those are the numbers we had already canvassed previously when we were dealing with those sections.
M. Lee: A quick comment in response to the minister.
I think that clearly indicates that there is a difference in terms of what has been referred to in the Parr report on the sections that I referred to and the pages. The minister is only referring to four-tenths of one cent for section 17, in effect, and one cent for section 20, when Mr. Parr indicated two cents on section 20 equivalent and two-tenths of a cent on section 4 equivalent.
I’ll leave it there, in terms of the differentiation. Clearly, there is a difference in the costing that has been derived here underlying this bill.
With that, I’ll turn it back to the member for Chilliwack.
Sections 27 and 28 approved.
On section 29.
J. Martin: Can the minister share if any work has been done on the expected number of appeal and review increases due to this section?
Hon. H. Bains: We actually understand that there are not a large number of decisions affected by this change. But for these reopening decisions, it provides consistency for the review and appeal process — what the decision was on application or on WorkSafeBC’s own initiative.
J. Martin: Related, can the minister share what is being done to make sure that WCAT can handle the increased number of proceedings if this section is passed?
Hon. H. Bains: As I said before, we expect there to be very few cases that fall within this section or will be impacted by this section, and it’s fairly easily manageable.
Section 29 approved.
On section 30.
J. Martin: Can the minister explain why we are removing consent from all parties?
Hon. H. Bains: In very rare cases, one party may refuse to give approval, frustrating or delaying the process when the original one-member panel is unable to complete an appeal — for example, when the original panel member becomes seriously ill or takes a new job. I think it is removing red tape as well. I think it smooths out the process, rather than allowing one party to frustrate the system by not agreeing to have another person appointed to hear the appeal.
J. Martin: Were stakeholders consulted for this particular change?
Hon. H. Bains: This is an issue that was identified by WCAT, where they see, in rare cases, that a party would frustrate the system. It is supported by the Attorney General, the administrative tribunals side of it, and it is just a part of good governance to make the system easier and smoother to work.
Section 30 approved.
On section 31.
J. Martin: Just one question. What is the purpose of removing these limiting provisions?
Hon. H. Bains: The effect of this is to give the Workers Compensation Appeal Tribunal jurisdiction over Canadian Charter of Rights and Freedoms issues and jurisdiction to apply the human rights code. Currently the tribunal is without this jurisdiction.
In contrast, WorkSafeBC has this jurisdiction. This means that the appellant can challenge WorkSafeBC decisions on Charter and human rights grounds at WorkSafeBC’s review division, the first level of the appeal, but not at the Workers Compensation Appeal Tribunal, or the WCAT, which is the final level of the appeal system. Instead, now the appellant must go to court to appeal review decisions on Charter and human rights grounds.
In the earlier process of the appeal system, they are allowed to make those decisions, but with the final decision, which is WCAT, they are not allowed.
I think this is just to be consistent and allow those arguments to be heard by WCAT, rather than having them go to the courts to deal with these issues.
Section 31 approved.
On section 32.
J. Martin: Section 32 — are these clarifications only applicable to simple omissions and errors?
Hon. H. Bains: This amendment streamlines the process for amending a final decision when the tribunal discovers an ambiguity in the decision on its own, if there is uncertainty — people don’t understand exactly what the decision means — or WorkSafeBC points out an ambiguity in a tribunal decision. Those are the circumstances where they can, on their own, clarify their own decision.
J. Martin: To clarify, then, can this be used to correct decisions that have been previously made?
Hon. H. Bains: If the member reads at 32, section 307, it continues with some of the powers that the tribunal already has, which are: “(a) correct any of the following: (i) a clerical or typographical error; (ii) an accidental or inadvertent error, omission or similar mistake; (iii) an arithmetical error made in a computation.” That’s where it ends.
What we are doing is adding, to say that it can also “(b) clarify the final decision.” It’s to clarify the final decision, but all the other powers remain in place.
Section 32 approved.
On section 33.
J. Martin: Prior to this bill, were there concerns over the disclosure of information relating to an appeal?
Hon. H. Bains: The purpose here is to expand the existing confidentiality provision for appeals to cover all information disclosed to a person in relation to an appeal. The existing confidentiality provision is limited to information related to the claim of an injured or disabled worker. This one will protect the confidential information for all who participate in the appeal process, not just for the injured and disabled workers.
There are all kinds of information shared about the employer at the WCAT, and the idea is to protect the confidentiality of all of that information that is shared at that level.
Sections 33 to 35 inclusive approved.
On section 36.
J. Martin: Can the minister please share how many potential retirement determinations may be made before section 18 comes into force?
Hon. H. Bains: I think I mentioned this before, but I’ll read it again:
“A new determination of a worker’s retirement age will not automatically be made on all cases where WorkSafeBC has already determined the worker’s retirement age. The transitional provision provides WorkSafeBC with discretion to make a new determination after age 63 on existing cases but does not require a new determination. The intention is to give existing disabled workers the benefit of a new retirement age determination after age 63 in cases where WorkSafeBC considers it appropriate to do so.”
Sections 36 and 37 approved.
Title approved.
Hon. H. Bains: I move that the committee rise and report Bill 23 complete without amendment.
Motion approved on the following division:
YEAS — 9 | ||
Kahlon | Begg | Bains |
Chen | Popham | Farnworth |
Mark | Malcolmson | Olsen |
NAYS — 8 | ||
Cadieux | Bond | Lee |
Martin | Ross | Oakes |
Sturdy |
| Foster |
The Chair: Well, seeing that, I would like to move that this committee do now adjourn.
Thank you, Members. I wish you the best for your evenings ahead and the best for the B.C. Day long weekend.
The committee adjourned at 6:31 p.m.