The Royal Commission’s Final Report

by Craig Paterson

The Final Report of the Royal Commission on Workers’ Compensation in British Columbia was presented to the Provincial Cabinet on 20 January 1999. It is entitled “For The Common Good”. It runs 1,300 pages.

Cabinet opted for a tripartite Commission approach. The three Commissioners were Gurmail Singh Gill, Oksana Exell and Gerry Stoney. His Honour Judge Gill is a Provincial Court Judge.

Ms. Exell is an employee of Catamaran Ferries International, a subsidiary of BC Ferry Corporation, with international marketing responsibilities. Mr. Stoney is the former president of IWA-Canada.

The Commission’s counsel work was provided by Terrence L. Robertson, QC and William S. Clark, both of Harper Grey Easton.

Neither the Canadian Bar Association, the Law Society of British Columbia nor the Trial Lawyers Association of British Columbia made any submissions to the Commission. A few lawyers appeared as witnesses or as counsel for parties of interest. This inquiry was not conducted in an inquisitorial approach involving examination and cross-examination of witnesses, like the Federal Somalia, Krever or APEC inquiries. It functioned primarily, in public, to hear brief oral submissions and, in private, did consultations and research through third party contracts. The Commission’s inquiry and research methods were controversial. Some 8,000 pages of research papers were produced. The commission cost $6.25 million.

The Commission’s report will disappoint any lawyers who favour an expanded or re-opened right to civil suits against employers, supervisors or workers. No such change was ever seriously considered. The Commission ringingly endorsed the status quo as far as litigation goes. No easier access to the BC Supreme Court or Court of Appeal is recommended for judicial review. “Medical services” are discussed but, unfortunately in my view, not “legal services”.

There is a soft cover “List of Recommendations”, 47 pages, with 222 specific recommendations. This can be obtained through Publication Centre - Queen’s Printer PO Box 9452, Victoria V8W 9V7. On the Internet, the report is at www.qp.gov.bc.ca/rcwc. After 31 March 1999, copies of the complete report will be available from Crown Publications Inc.: $75 for print; $25 for CD-ROM. Or contact Coordinator for Publications, Royal Commission, PO Box 9999, Victoria V8W 9W9.

Commissioner Exell dissented from four recommendations. Commissioner Stoney dissented from 12 recommendations. The Commission applauded the WCB’s fiscal governance but slammed it heavily over service delivery issues.

The Commission’s recommendations would result in some significant benefit and pension reductions. No cost figures are given.

The Commission said workers presently win approximately 40 per cent of appeals. It recommends one external appeal body to replace the three current levels.

The Commission’s recommendations on benefits coverage are controversial:

• scrapping the physical impairment pension in favour of a “real loss of earnings” pension;
• quite low lump sum “non-economic loss” pensions;
• “real loss of earnings” pension to be replaced by “retirement income-loss” pension at age 65;
• reducing WCB benefit entitlements by any CPP received;
• moving from a 75 per cent gross to a 90 per cent net system;
• “Policy” to take precedence over “merits and justice”; and
• compulsory re-employment of disabled for up to two years by employers with 20 or more workers.

Labour Minister Dale Lovick’s press release said he will be consulting “key stakeholders” now. This process is unlikely to be transparent. Apparently, no legislation can be expected until Spring 2000, at least. The two opposition parties have not issued formal responses, nor have labour and business. Meanwhile, the WCB continues to be run from Victoria under a temporary statutory trusteeship.

Michael Tanner is responsible for WCB matters at the Ministry of Labour’s Policy Branch. Tel 250.356.7264 Fax 250.356.5335

The Canadian Injured Workers Alliance (http://ciwa.ca) has links to other WCB related sites.

Craig Paterson is the principal of Paterson & Associates/Oaxaca Law Corporation.

This article was published in the April 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.