June 26, 2020
Income Security Advocacy Centre and Parkdale Community Legal Services welcome the Supreme Court’s landmark decision for gig workers
Toronto: In a ground-breaking decision released this morning, the Supreme Court of Canada made it easier for workers to challenge unfair contractual terms imposed by companies that hire them, whether or not they are in a formal employment relationship. The court sided with Uber drivers and reached a decision that addresses the concerns about access to justice highlighted by ISAC and PCLS in their submission before the court.
Today’s decision in Uber Technologies Inc. v. Heller is a win for drivers who were forced to accept a standard “mandatory arbitration agreement” when they signed up on the Uber app. According to Uber, this meant that the drivers could no longer go to court or the Ministry of Labour with workplace disputes. Instead, they would have to go before a private decision-maker in Amsterdam, in a process that is both secret and expensive. In a 8-1 decision, the Supreme Court decided that the agreement could not stand, and the drivers could go ahead with a class action to determine whether they are employees.
“ISAC and PCLS teamed up to intervene in the case to argue that workers’ right to seek justice in our public institutions cannot be signed away or privatized,” said Nabila Qureshi, staff lawyer at ISAC who provided oral arguments before the Supreme Court. “Otherwise, employers can sidestep laws that guarantee workers’ rights.”
In siding with Uber workers, a majority of the judges held that the mandatory arbitration agreement was unfair, or “unconscionable”. “The court recognized that Uber is in an unequal relationship with its drivers,” Qureshi added. “Companies cannot use this power imbalance to strip workers of their rights under the guise of an ‘agreement’”.
“This decision strengthens protections for workers who may be taken advantage of by the companies that hire them,” said John No, staff lawyer at PCLS. “To show that an agreement was unconscionable and therefore invalid, a worker will no longer be required to prove that their employer knowingly took advantage of the worker’s vulnerable status. This is an important victory for workers.”
“During the COVID-19 pandemic, previously undervalued workers, like farm workers, food delivery ‘gig’ workers, and cleaners, have been recognized as essential to our community and achieved important gains,” No added. “But like grocery stores that cancelled pandemic pay, employers still have great power over workers. To have a more just and fair society, we need to transform working conditions and the systems that allow for exploitation.”
In an earlier decision in this case, the Court of Appeal for Ontario had found that mandatory arbitration agreements imposed by employers are always illegal because they violate Ontario’s Employment Standards Act. The Supreme Court did not disagree with that ruling, but left that issue to be determined on another day.
Income Security Advocacy Centre (ISAC) is a community legal clinic with a mandate to advance the systemic interests and rights of low-income Ontarians around income security programs and low-wage precarious employment.
Parkdale Community Legal Services (PCLS) serves low income residents of Parkdale and Swansea neighbourhoods in Toronto. Since its founding in 1971, PCLS has advised and represented thousands of employees and former employees against their employers.
WHY we advertise other provinces’ media write-ups in support of Injured Workers .
In Alberta information is not reported on the plight of Alberta injured workers through the media . If Alberta Injured Workers are lucky a story may be printed once or twice a year. Other provinces throughout Canada steadily have the support of the media which in turn garners the support of the public to outcry for justice. Although injured workers in Alberta suffer the same ongoing problems and maybe worse than other provinces, the public and Government is not informed .
Injured workers of Alberta need public and government support when the WCB Alberta and the Appeals Commission working for the WCB Alberta refuse to comply with the Workers Compensation Act, The Alberta Court of Appeal, the Supreme Court of Canada or Human Rights.
Out of sight of public scrutiny can allow those in power to abuse their power and ignore the laws and policies that are put in place to protect the disabled from work injuries that left them without any earnings , medical treatment and personal care.
Like this lucky fellow below, many injured workers in Alberta have had their claim accepted and meet all laws in Alberta and Canada but WCB Alberta and the AC still refuse to comply . The AC and WCB have made decisions against Alberta Injured Workers knowing they never had jurisdiction to overrule law. Injured Worker ‘s in Alberta cannot get justice without any public scrutiny Alberta Injured workers are ignored and cannot advocate alone.
ONTARIO VS. ALBERTA
Tribunal adjudicators perform judicial functions. They must interpret legislation, weigh evidence and make legal and factual findings just as judges do. These tribunals are therefore properly understood to be judicial tribunals and the process for appointing and re-appointing adjudicators to judicial tribunals must be as principled as the process for appointing judges. At a minimum, decisions about re-appointments must be transparent and demonstrably free from any political interference. The process for selecting new appointees must be merit-based and competitive as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act (“the Tribunals Act”).
The system the government inherited
The previous government established a modern tribunal appointment and reappointment system as set out in the Tribunals Act and the Directive on Appointments and Re-appointments. The key features of the system were as follows:
A commitment to a competitive, merit-based process for appointments to tribunals
Qualified candidates were subject to a rigorous application process conducted by thetribunal (e.g. published selection criteria, interviews, writing a sample decision).
The Chair provided the government with a list of the most qualified candidates.Appointments were made only from that list.
With very few exceptions, appointments were for fixed terms, starting with an initial two-year appointment, followed by a three-year re-appointment, and a final five-yearappointment.
The Chair was solely responsible for making re-appointment recommendations. Theserecommendations were routinely accepted by the government. While not perfect, this system had many advantages:
The Tribunal Chair, who is in the best position to know the tribunal’s needs, retained control over who would be appointed and re-appointed.
People could look to tribunal adjudication as a profession with a reasonable expectation of at least 10 years of work subject to good performance. This made the position attractive to mid-career professionals with expertise in the subject matter of the tribunal and often adjudicative experience. Adjudicators were eligible for appointment to a new tribunal at the conclusion of a term, preserving the adjudicative experience for the overall system.
The potential for partisan appointments was significantly reduced.
Tribunals could plan on the basis of having a stable group of meritorious and experienced adjudicators.
What the present government has done
The present government has largely abandoned the system it inherited.
Appointment recommendations from Chairs are frequently not accepted. Chairs have been pressured to consider alternate candidates proposed by the government.
Recommendations from Chairs about the re-appointment of existing adjudicators are routinely rejected, with no explanation provided. This is the principle cause of the existing severe shortage of adjudicators.
When re-appointments are made, they are for irregular and unpredictable terms. The length of terms has varied considerably even in the same tribunal, with no explanation for the different terms. Many new appointments have also been for irregular terms.
Most re-appointments have been for short terms, sometimes as short as 6 months. Even Chairs and Associate Chairs have been re-appointed for short terms.
Even before the COVID-19 emergency, the circumstances of Ontario’s tribunals were already dire. The tribunals of most relevance to disadvantaged individuals were, in particular, seriously weakened. Experienced adjudicators were let go, large numbers of vacant adjudicator positions were left unfilled, and key tribunal leadership positions were either left vacant or filled with people with responsibilities for too many tribunals. The lack of any predictability about re- appointments, combined with a general demoralization about the deterioration of the sector, has necessarily caused large numbers of adjudicators to leave for less precarious employment, adding to the shortage. The precarious nature of an appointment also makes it difficult for tribunals to attract experienced, professional candidates.
Now, in the midst of a pandemic, the folly of this situation is even more evident. The numbers of the vulnerable have greatly increased, as has their need to be able to claim the protections offered by our laws. Now more than ever tribunals need a full complement of highly qualified adjudicators. Now more than ever they need leaders with the necessary subject matter and adjudicative expertise to effectively deploy resources and adjust processes to ensure procedural protections and deliver high quality outcomes. Now more than ever Tribunals Ontario needs to be led by someone with recognized expertise in tribunal leadership, someone who will be widely recognized as an impartial, non-partisan and independent guarantor of the integrity of this vital part of our administrative justice system.
The tribunals in Tribunals Ontario will play a critical role as we move forward. They will have to change how disputes are resolved and make important decisions about rights and obligations in the continually changing context of the pandemic. To do this, they need to be fully functioning. The mismanagement of Tribunals Ontario over the last two years, leading to a severe reduction in adjudicative capacity and competence, rising backlogs, demoralization of those who are left, and a leadership vacuum, means that these tribunals are nowhere near being able to function fully.
There are three things that need to be done as quickly as possible to rectify this situation.
- Fill the leadership positions through a credible, competitive and transparent process: The position of Executive Chair of Tribunals Ontario is a critical position and must be filled quickly. However, if the process is not credible, competitive and transparent, the integrity of Tribunals Ontario will be compromised. Parties, the public, and the tribunal adjudicators will lose faith in the ability of tribunals to deliver justice. Appendix B provides a detailed discussion of this issue.
- Restore the integrity of the appointment and re-appointment process: Tribunals need to have adequate numbers of experienced, competent adjudicators. The ongoing refusal to re-appoint adjudicators on the recommendation of the tribunal Chair or Associate Chair must stop. New adjudicators must be appointed as quickly as possible and the appointment process must at a minimum be consistent with section 14(1) of the Tribunals Act which states:
14 (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:
1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.
2. Aptitude for impartial adjudication.
3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.
3. Appointments and re-appointments must be for fixed terms
The current approach of inconsistent and mostly short terms for appointments and re- appointments will result in a serious erosion of the principle of adjudicative independence, a cornerstone of our justice system.
Those who appear before adjudicative tribunals must have confidence that the adjudicator in front of them has the necessary independence to make decisions on the basis of the law and the evidence, free from any concern that the adjudicator’s continued employment is conditional on the government’s approving the adjudicators decisions. This becomes especially obvious for tribunals where the government is a party.
Articles About WCB, Appeals Commission, and Injured Workers :
Response to the WCB Review: To read the Canadian Injured Workers Association of Alberta Response to the Final Report of the Alberta Workers Compensation Board Review Panel, click here
PLATFORM FOR CHANGE (2004)
As amended by the Thunder Bay & District Injured Workers’ Support Group
How workers’ comp fanned the flames of the opioid crisis – Globe examination of cases involving dozens of injured workers dependent on narcotic painkillers reveals deeply entrenched flaws in the provincial systems
You are invited to join our Thunder Bay Injured Workers’ weekly zoom gatherings every Tuesday mornings from 10 am to 12 noon. You can also join by telephone. Check out the poster below for more info.
Please share with anyone or their family who are dealing with a workplace injury or disease. Thanks.
As we continue to adjust to our ongoing office closure, Injured Workers Community Legal Clinic will begin having online town hall/education events about pressing issues related to Workers Compensation.
We will kick things off next Wednesday, May 27th at 3pm, with a session titled:
COVID-19 Crisis – Is WSIB there for the injured?
Presented by IWC staff, along with injured workers and allies.
Coronavirus has created all kinds of new expenses for Injured Workers, but the WSIB isn’t paying for increased grocery costs, safer travel expenses, or PPE. Join us for a town hall-style event to discuss WSIB’s response to the COVID-19 crisis, and what you can do about it.
Interested participants are encouraged to register for the Town Hall here: https://www.crowdcast.io/e/iwc-covid
Joining through CrowdCast will allow people to interact with each other and ask the presenters questions.
If people are not keen to sign up formally, it will also be streamed on YouTube at: https://youtu.be/-zw0iqOmXsc
Posters are attached. Thanks!
VANCOUVER—British Columbia is changing its workers’ compensation system to make it easier for those sick with COVID-19 to make claims for lost pay — the type of reforms Ontario workers have been seeking for more than a month.
All workers in industries deemed essential by B.C. will be able to make a claim to workers’ compensation without having to prove they got the disease at work.
It’s a matter of adding COVID-19 to a list of presumptive conditions acknowledged by WorkSafeBC — the provincial occupational health and safety body.
Critics in Ontario say it’s another reminder that their province could be doing more to protect essential workers fighting COVID-19 on the front lines.
“We now have over 2,000 health care workers who have tested positive for COVID-19,” reads a May 5 letter sent by Ontario Federation of Labour president Patty Coates to the premier and two ministers.
“They and other essential workers need to know that your government has their back — that if they get sick or need to be quarantined, our workers’ compensation system will fully support them.”
The Ontario Federation of Labour (OFL) first asked the province to ramp up its workers’ compensation program in a written proposal on April 3. It included the demand that essential workers sick with COVID-19 should not have to wonder whether their claims for compensation will be accepted.
When Ontario workers get sick or injured on the job and lose pay because of it, they make claims with the Workplace Safety & Insurance Board (WSIB), the provincial body that adjudicates claims and administers payouts. Usually, the onus is on the worker to prove that the injury or illness took place at work — otherwise their claim could be denied.
But there are exceptions. Certain conditions are presumed to be work related for insurance purposes in specific job categories. For example, a firefighter who develops cancer can get workers’ compensation without having to prove the cancer was related to smoke exposure — it’s presumed that’s the case.
For Jennifer Whiteside, a spokesperson for B.C.’s Hospital Employees Union, which represents care aides and other health-care workers, the new changes are a crucial step to keeping workers physically and financially safe.
“It means they will have fewer hoops to jump through to get their claim accepted,” she said, adding it would hopefully help ensure the worker uses the time they are sick to stay home and get well, without feeling pressured to get back to work too early.
“We can’t afford to be losing health-care workers for long periods of time due to illness,” she said.
Although a positive measure, Whiteside says it’s not the same as guaranteeing sick pay provisions to workers in all essential industries — where the standard number of paid sick days varies across industries and workplaces. And she wants to see presumption applied to mental health conditions related to working through a pandemic also.
The addition of COVID-19 as a presumptive condition will also take six months to kick in — a delay that could be significant, especially for low paid workers.
“The B.C. government’s emergency powers give it the authority to swiftly act to protect workers — both the essential workers we’ve asked to show up throughout this pandemic, and those who return to work as we enter the next phase,” B.C. Federation of Labour president Laird Cronk said in a press release. “It’s time to use those powers.”
WSIB and WorkSafeBC both published data last week on the number of COVID-19 related claims they had received since the beginning of the pandemic. The Ontario body received 3,004 COVID-19 related claims as of May 5, while the B.C. body received 340 as of May 6.
Health-care workers represented 428 total coronavirus cases in B.C. at the end of last month, while the number in Ontario is more than 2,200.
Coates, the OFL president, referred to B.C.’s action in her May 5 letter and urged the province to follow suit. Alex McKeen is a Vancouver-based reporter covering transportation and labour for the Star. Follow her on Twitter: @alex_mckeen
To download and read the OFL letter to the government on Worker’s Compensation for COVID-19, click here.
To download and read the OFL proposal to the Ontario government regarding COVID-19 details, click here.
Province urged to make workers’ compensation automatic for essential employees diagnosed with COVID-19
By Sara Mojtehedzadeh, Work and Wealth Reporter
Worker advocates are urging the province to change worker compensation laws to make it easier for health-care and other essential workers infected with COVID-19 to access benefits, according to a new letter seen by the Star.
It comes as the provincial workers’ compensation board has received some 450 benefit claims from workers who believe they contracted the virus on the job over the past month, the Star has learned. The board has also received some 200 reports from employers of potential workplace exposures to COVID-19.
The letter, sent Friday to Premier Doug Ford and Ontario’s ministers of labour and health, outlines “vital” proposals needed to protect the province’s essential workers, including “thousands of vulnerable non-unionized workers performing essential services.”
“These workers are risking their health and for some, their lives, by carrying out their work responsibilities,” says the letter from Ontario Federation of Labour President Patty Coates, and signed by 26 unions, legal clinics and injured-worker advocates.
“To do this, they must be confident that if they become sick from COVID-19 or must be isolated due to occupational exposure to this virus, they will have the full protection of the workers’ compensation system.”
Ontario workers are entitled to benefits and income replacement if their workplace played a significant role in their accident or illness. In most cases if a worker gets sick or hurt on the job, they must prove to the Workplace Safety and Insurance Board that it was work-related to be eligible for benefits, including income replacement.
But in light of the pandemic, advocates are urging the government to legislate automatic entitlement to workers’ compensation for essential workers diagnosed with COVID-19.
The proposed changes would create a so-called non-rebuttable presumption that the virus was contracted on the job, the letter says. Current laws encode this presumption for a select list of diseases where there is a high degree of scientific certainty that the illness was caused by workplace exposure.
The letter calls for the new measure to cover health-care workers, first responders and other essential workers who come into contact with the public, such as those in child care, transit, retail and delivery.
“Cabinet could make these changes in a few days if it wished to do so,” the letter says.
In an emailed statement, Bradley Metlin, spokesperson for Minister of Labour Monte McNaughton, said government had “taken decisive action to support workers,” including job-protected leaves, beefing up inspections and doubling the number of phone agents at the ministry’s health and safety call centre.
“Minister McNaughton has been on the phone every day with labour leaders, businesses and, most importantly, workers. Their advice has been essential in our effort to keep workers safe during this difficult time,” the statement said.
“The premier has been clear that every option is on the table, and our government is prepared to take further action as required.”
As it stands, the WSIB is making decisions on COVID-19 claims on a case-by-case basis.
“We have great concerns with that policy,” said Janet Paterson, president of the Ontario Network of Injured Worker Groups.
“(Essential workers) should be able to feel confident that they are going to be taken care of.”
WSIB spokesperson Christine Arnott said the board has created a “dedicated team working through COVID-19-related claims as quickly as possible.
“We know this is a difficult time for people. We have moved quickly to deliver services remotely, including managing active claims, processing new claims and answering phones. We will do everything we can to help so people can focus on their loved ones and always on their health and safety,” she said.
Advocates are also calling for workers’ compensation coverage to extend to “independent operators” or self-employed workers — like those in the gig economy — who may not be covered.
Some gig employers, such as food-delivery service Foodora, do pay into the workers’ compensation system. But the letter sent Friday notes that “many workers who may put themselves at risk by contact with the public do not have workers’ compensation protection, either because they work in a non-covered sector of the economy or have been treated as independent operators.”
“Finally, we need to protect community volunteers who step up to help others and become ill or need to be isolated,” the letter adds. (Recently, the province enacted new emergency measures that allow hospitals to override collective agreements to draft in volunteer help).
Access to workers’ compensation benefits — which are funded by employer premiums — could provide an alternate support system to employment insurance and government-funded emergency benefits, which have been inundated with applications.
According to its policy document on COVID-19, the WSIB is making entitlement decisions based on factors like whether the nature of the work puts people at risk of contact with the virus, as well as whether workers have personal protective gear — a mounting concern given existing shortages.
Jessica Ponting, a community legal worker with the Industrial Accident Victims Group of Ontario, said the board also needs to provide other assurances to injured workers amidst the pandemic.
Most at risk, she said, are those who were already off work because of a severe injury and may now be facing layoff.
“The board is basically presuming it’s a temporary layoff. That’s a problem because when people do start to get hired back, I think there’s a lot of discrimination against people with disabilities,” she said.
“The board needs to assume at least for now that it’s a permanent layoff,” she added.
That would allow for a continuation of benefits for injured workers who may have enough work hours to qualify for employment insurance.
The WSIB recently announced a $1.9-billion relief package for businesses that will allow them to defer premium payments until August.
Paterson said she wants to see similar relief programs for injured workers — including an end to the practice known as deeming, which is when the board deems an injured worker capable of returning to work, identifies jobs they could theoretically do, and slashes their benefits accordingly.
“We realize businesses are very much getting impacted,” Paterson said.
“But injured workers are supposed to be the number one focus of the workers’ compensation system. And we feel like, where are we?”
Here is the most recent infographic from the ONIWG Research Action Committee. It shows how total benefits for workers hurt on the job fell by $2.3 billion annually while employers profited by $2.8 billion in reduced premiums. On the back side, we share a real life story of how injured workers and their families are impacted.
It has been developed to support the ONIWG Workers Comp is a Right campaign.
You can download the infographic here as a PDF.
Each Year Workers Compensation Corporation “TARGETS” the most Severely Injured Workers for Claim Termination, recent internet websites have identified $Bonus Structure$ comp employees are rewarded with for “Closing Claim Files” – This couldn’t be more serious for severely injured in “Severe Pain” – Physicians prescribe “Handfuls” of Pills” treating symptoms, while “WCB repetitively Denies” physicians requests for specialist appointment + MRI…… to find and treat the source of the pain.
How Dangerous are these medications? https://www.healthline.com/…/how-pain-killers-could-be-hurt… – New research backs up previous studies that showed the potential side effects of painkillers. It also concludes risks start within weeks of taking the drugs.
What makes opioid medications effective for treating pain can also make them dangerous. At lower doses, opioids may make you feel sleepy, but higher doses can slow your breathing and heart rate, which can lead to death.
Instead of diagnostic testing, WCB sends severely injured for “Assessment $2000 (Doctor, Physiotherapist, Chiropractor , Psychologist) WCB “”Modus Operandi”” – (Send Falsified Medical Information to the Assessment Team) to prevent “ANY” medical investigation) if the assessment team makes recommendations, WCB rewrites “Assessment Report” deleting recommendations to protect or help the injured worker. In other cases, WCB writes to “Neurosurgeon” with “Blatant Falsified Information” to have the Neurosurgeon drop any recommendations.
Severely Injured Workers couldn’t be in a worse situation. As WCB begins their “TORTURE” program, “everything possible is used to inflict extreme +10 PAIN. “New Injury” in hopes the injured worker will not attend physiotherapy. (Physicians report of New Injury in Physiotherapy “DENIED” claim acceptance, or medical investigation.) “The “Non-compliant Injured Worker” is then “Terminated” from WCB benefits, and then further attacked, with an “Overpayment”. Over the years WCB has deliberately used this “Overpayment” to destroy injured workers “Credit” – and make injured workers “Give Up” go back to work still injured without diagnosis, treatment.
Last year, Heavily medicated injured “Truck Driver” fell asleep at the wheel on the highway, after being refused medical investigation / treatment of workplace injury, by “Non-medical WCB employee”. Luckily, the semi-truck went into the ditch, came back across the highway, into the other ditch, and back up onto the road, without anyone getting injured or killed.
“Good Luck” winning a Workers Compensation Appeal for denial of requested medical treatment as WCB employees “Deliberately Falsify” appeal information.