BY: CHRIS DRINOVZ

On July 14, 2020, the BC government tabled Bill 23, Workers Compensation Amendment Act, 2020. The proposed amendments are informed by Jeff Parr’s Consultation Report, which examined the recommendations from three earlier reviews completed in the past two years (Helps Report, Petrie Report, and the Bogyo Report).

While the changes are aimed at increasing support for injured workers in various ways, they will inevitably result in increased costs for employers by way of increased premiums. There are also proposed expansions to personal liability for corporate directors and in our view, a possible shift from administrative penalties to more criminal prosecutions for serious health and safety violations that will cause concern for many businesses. A coalition of businesses proposed the following response letter to the proposed changes.

The following is a summary of the key proposed legislative changes.

Increased Worker Benefits 

• Increasing a worker’s maximum annual insurable earnings from $87,100 to $100,000 – this aims to ensure that 90% of workers have 100% of wages covered in a WorkSafeBC claim;
• Changing the current procedure around whether the loss of function or loss of earnings method should be used in calculating a worker’s pension benefits so that the worker will always receive the higher of the two – at present, there is a complicated test which requires there to be a significant loss of earnings for the loss of earning pension method to be used – again, this will result in higher benefits for disabled workers;
• Permitting WorkSafeBC to set a worker’s retirement date (and therefore the date pension benefits end) when the worker is nearing age 65 rather than at the time of injury – this addresses present difficulties of assessing a retirement date when a worker is young, and will likely result in more claims being extended past the default age 65;
• Allowing WorkSafeBC to fund certain urgent health care treatment even before the claim is accepted (examples given include counselling for mental health issues or preventing infections);
• Removing the current one-year limitation period for reporting mental health claims; presently, workers applying past the one-year mark must show special circumstances existed that prevented them from reporting in time – this will likely result in the acceptance of many historical mental health claims that would otherwise be time-barred.

New Tools Added for Criminal Prosecutions 

The proposed amendments add a number of procedural tools which relate to criminal prosecutions for serious health and safety violations. At this time, WorkSafeBC enforces occupational health and safety regulations primarily through the use of administrative fines and penalties. The amendments will give WorkSafeBC greater powers, such as a process to obtain a warrant for search and seizure under the Act for prosecutions (similar to Ontario), allowing courts to hear victim impact statements during prosecution, and giving courts the power to compel convicted employers to publish facts about their offences in the newspaper or a company-wide newsletter, at the employer’s expense. We note that section 104(1)(e) of the current Act already allows the court to direct WorkSafeBC to publish the facts at the employer's expense.

Additional Changes 

The proposed amendments will make corporate directors personally liable for unpaid premiums or other amounts owed to WorkSafeBC

The legislation also aims to expedite the inclusion of COVID-19 as an occupational disease under Schedule 1 of the Act, which will ensure employees at higher risk of contracting viral diseases can access benefits quickly by way of an automatic presumption.

We will be closely monitoring this Bill as it is debated and will update this blog with any relevant changes made before it is passed into law.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.