Conflicts Between Workers’ Comp Law & Human Rights
The recent decision of the Supreme Court of Canada has again brought into focus the issue of workers’ compensation benefits and human rights issues. This decision arose from a conflict within Quebec’s workers’ compensation statute and the province’s Charter of Human Rights & Freedoms. The Supreme Court case concluded that the Charter demanded that the workers’ compensation statute be read to include the duty to accommodate the injured worker for his return to work. The statute did not specifically reference this duty.
The duty to accommodate is a fundamental human rights concept, particularly as it applies to a disabled employee and return to work issues. This has been recently canvassed.
The scheme of Ontario’s Workplace Safety & Insurance Act denies the injured worker the right to sue. It is intended as a complete code of the rights of the injured worker.
This statute has been successfully challenged in the past based on its treatment of workers suffering from mental disabilities which, in turn, has inspired legislated reform on this subject.
Generally speaking any provincial law can be reviewed by a civil court based on the assertion that it is in violation of a Charter right. A similar example is the successful challenge to the Ontario statute which dealt with eligibility for disability benefits, yet denied these benefits to persons suffering from alcohol or drug addiction.
The same result followed in a case in which Ontario’s Employment Standards Act was found contrary to the Charter as this law denied severance payments to persons suffering from a medical disability.
Points of Note of WSIA
This statute itself purports to deny the application of the Human Rights Code on the issue of adverse treatment due to age. Ontario’s legislation presently caps entitlement to benefits at age 65 or for a two year period where the accident occurred after the claimant’s 63rd birthday. The same two year limit also applies to persons who are injured after 65. Further, the Act’s obligation to re-hire an injured worker ceases at age 65.
Given the recent Supreme Court decision, this provision is open to review.
The statute also mandates other qualifiers for its return to work (“RTW”) provisions. The remedy of RTW does not apply to all employees. The worker must have been employed for at least 12 months prior to the accident. The employer must employ at least 20 or more employees. The WSIA contemplates that the RTW will lead to full employment at the pre-accident position or a position which pays the same as the pre-accident position.
Should the employer fail to allow for re-employment, ironically the WSIA does not lead to an order of reinstatement. The defaulting employer is required to pay a financial penalty of up to 12 months’ salary.
Different rules apply to the construction industry. The obligation to accommodate is not open ended. It terminates the earliest of two years from the date of the injury, or one year from the date of the intended return to work, or other terms.
All of the above terms are suspect, given the Supreme Court decision. The more obvious vulnerability is the worker for insufficient work history and the statute’s failure to allow for actual reinstatement as a remedy. The statute proposes to deny any relief but those in its code, yet denies its RTW application to such an individual and ignores a real reinstatement remedy. This seems morally unfair and now likely legally offside.
Understand Your Rights
The employer’s prospective on this issue is complex as the onus for defending a Charter challenge will rest upon the Attorney-General. The employer is a party on the sidelines, yet one with advocacy rights, however, its liability will rest upon a challenge to a law of which it had no hand in creating.
The employee will have the unattractive position of challenging a provincial statute against institutional parties who do not have costs concerns. Public funding is available for such cases. A successful remedy may lead to considerable compensation.
Regardless of your side to this clearly pending dispute, let legal advice guide your actions preventively and as a remedy.
If you have questions about this conflict between human rights and workers’ compensation issues, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
 The Ontario Disability Support Program; Ontario Court of Appeal in the 2010 decision of Ontario (Disability Support Program) v. Tranchemontagne.
 not notice or termination pay but severance pay which is the one week per year sum when payroll exceeds $2.5 million annually and employment is 5 years or more; Ontario Nurses Association and Mount Sinai Hospital
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