Dear Mr. Copping;
Congratulations on your election win and selection as labor minister by Mr. Kenny. From your biography I see that you have impressive credentials as the new labor minister. Better yet, some of your studies were from Osgoode Hall where I assume you must have met Dr. Terence Ison who is acknowledged as Canada’s foremost expert on administrative law as it pertains to workers compensation.
We have a perplexing problem in Alberta that has been around for decades and that is who has the burden of proof both for and against in the workers compensation system. According to Dr. Ison neither the worker or the employer has any burden of proof. Dr. Ison suggests that in the workers compensation system in Canada, the “Board” is the only one who has the burden of proof, both for and against in what he refers to as an Inquiry system. This was noted by Justice Bruce Millar of the Alberta Court of Queens Bench when I was involved in a Judicial Review which resulted in the Appeals Commission and WCB Legal Counsel being advised by Justice Millar that my client under an Inquiry system had no burden of proof whatsoever, yet both WCB and the Appeals Commission persist in placing the burden of proof on workers. It is rare that an employer ever appeals any decision and rarely if ever attends an in person appeals hearing when WCB, DRDRB and the Appeals Commission assume the role of the employer to contradict a worker who is left on their own to argue their claim.
If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where it states:
V Principles of Adjudication Inquiry Model
The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement.
Click on the following link:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj Scroll down to page 814 third paragraph where Dr. Ison states:
With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant.
In Alberta, the burden of proof is put on the worker which is typical of an adversarial system which was never the intention of Meredith specifically because workers do not have the resources or financial ability to pay medical costs, legal costs to fight WCB, DRDRB and the Appeals Commission. Workers also do not by statute have the right to investigate, do not have the same powers as a the Court of queens Bench as does WCB, they also do not have any powers of investigation as does WCB under the Public Inquiries Act.
My question to you is the same question I have asked previous Ministers in charge of the WCB. Who has the burden of proof in the workers compensation system in Alberta or is Alberta the only province in Canada that adjudication of claims is based on an adversarial system.
It seems no one wants to answer this very simple question which after one hundred years, the people adjudicating claims should know whether Alberta operates on a strict civil law standard where workers are regarded as plaintiffs rather than claimants. I would appreciate a response although I don’t expect you or any one else would have the intestinal fortitude to upset the sacred cow.
Adding to this is that we have laws in Canada and in the province of Alberta which we as citizens are expected to obey. That being the case why is it that WCB and the Appeals Commission are not held to that standard and if they are not, then why should any one obey the law. Our courts, including the Supreme Court of Canada find that WCB and the Appeals Commission are not in compliance with the law and WCB and the Appeals Commission continue to ignore the law and if they are sued, claim an honest mistake. When is the Alberta Government going to either fix the system to comply with the Meredith Principles or simply get rid of the whole system and the scumbags that are placed in positions where they are allowed to abuse workers and their families. By the way I am not an injured worker, have never filed a claim but I would be amiss if I did not assist and care for the less fortunate in our society which is more than the Government can say as in my opinion, the Government does not give a rat’s ass as to what happens to injured and disabled workers.
- Gerry Miller