Bill 73 - An Act to Amend the Workplace Health, Safety and Compensation Commission Act

BILL 73

An Act to Amend the Workplace Health, Safety and Compensation Commission Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1( 1) The title of the Workplace Health, Safety and Compensation Commission Act, chapter W-14 of the Acts of New Brunswick, 1994, is repealed and the following is substituted:

Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act

1( 2) If in any Act, other than this Act, or in any regulation, rule, order, by-law, agreement or other instrument or document, reference is made to the Workplace Health, Safety and Compensation Commission Act, it shall be read, unless the context otherwise requires, as a reference to the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act.

2 Section 1 of the Act is amended

(a) by repealing the definition “Appeals Tribunal” and substituting the following:

“Appeals Tribunal” means the Workers’ Compensation Appeals Tribunal established under this Act; (Tribunal d’appel)

(b) by repealing the definition “Chairperson of the Appeals Tribunal”.

3 Subsection 5(1) of the Act is repealed and the following is substituted:

5( 1) The Minister is responsible for the administration of this Act, except in respect of those powers and responsibilities that this Act confers or imposes on the Commission.

4 Section 8 of the Act is amended

(a) in subsection (1) by repealing paragraph (f);

(b) in subsection (2) by striking out “Other than the President and Chief Executive Officer and the Chairperson of the Appeals Tribunal” and substituting “Other than the President and Chief Executive Officer of the Commission”.

5 Subsection 9(2) of the Act is amended by striking out “, the President and Chief Executive Officer and the Chairperson of the Appeals Tribunal” and substituting “and the President and Chief Executive Officer of the Commission”.

6 Section 11 of the Act is amended by adding after subsection (4) the following:

11( 5) This section applies with the necessary modifications to the Chairperson and Vice-Chairpersons of the Appeals Tribunal.

7 Section 12 of the Act is amended by adding after subsection (2) the following:

12( 3) This section applies with the necessary modifications to the Chairperson and Vice-Chairpersons of the Appeals Tribunal.

8 Section 14 of the Act is amended by striking out “, the Chairperson of the Appeals Tribunal”.

9 The Act is amended by adding after section 14 the following:

Non-suit re the Appeals Tribunal

14.1 Neither the Chairperson of the Appeals Tribunal, the Vice-Chairpersons of the Appeals Tribunal, an employee of the Appeals Tribunal nor anyone acting under the instructions of any of them shall be personally liable for any loss or damage suffered by any person by reason of anything done in good faith, or omitted to be done in good faith, by him, her or them, pursuant to or in the exercise or supposed exercise of the power given to him, her or them by this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act.

10 Section 15 of the Act is amended

(a) in subsection (1) by repealing the portion preceding paragraph (a) and substituting the following:

15( 1) Except in respect of an action by or on behalf of the Commission to procure a judgment in its favour, the Commission may indemnify a person who is a member of the board of directors, an officer or an employee of the Commission and persons authorized to act on behalf of the Commission and the person’s heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred in connection with the person’s involvement in any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a member of the board of directors or an officer or an employee, if

(b) in subsection (2) by striking out “, a member of the Appeals Tribunal”;

(d) in subsection (4) by striking out “, a member of the Appeals Tribunal”.

11 Section 16 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

16( 1) The Commission or the President and Chief Executive Officer of the Commission may delegate any of their powers, duties, authority or discretion under this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, to one or more persons in such a manner and subject to such terms and conditions as the Commission or the President and Chief Executive Officer, as the case may be, considers appropriate.

(b) by repealing subsection (3) and substituting the following:

16( 3) A decision, order or ruling of a person to whom the Commission has made a delegation under subsection (1) or of a person to whom a subdelegation has been made under subsection (2) shall be deemed to be a decision, order or ruling of the Commission.

12 The Act is amended by adding before section 20 the following:

Definition of “member”

19.1 In sections 20 to 21, “member” means the Chairperson or a Vice-Chairperson of the Appeals Tribunal.

13 The heading “Establishing Appeals Tribunal” preceding section 20 of the Act is repealed and the following is substituted:

Appeals Tribunal

14 Section 20 of the Act is repealed and the following is substituted:

20( 1) There is established an appeals tribunal called the Workers’ Compensation Appeals Tribunal.

20( 2) The Appeals Tribunal shall consist of

(a) a Chairperson who serves as a full-time member, and

(b) not fewer than five and not more than ten Vice-Chairpersons who serve as part-time members.

15 The Act is amended by adding after section 20 the following:

Members of the Appeals Tribunal

20.1( 1) The members of the Appeals Tribunal shall be appointed by the Lieutenant-Governor in Council.

20.1( 2) The Chairperson of the Appeals Tribunal shall be appointed for a term of five years and may be reappointed.

20.1( 3) The Vice-Chairpersons of the Appeals Tribunal shall be appointed for a term of not fewer than three years and not more than five years and may be reappointed.

20.1( 4) Despite subsections (2) and (3) but subject to subsection (5), a member is not eligible to serve as a member for more than ten consecutive years.

20.1( 5) If a Vice-Chairperson of the Appeals Tribunal is appointed the Chairperson of the Appeals Tribunal, he or she is eligible to be appointed as Chairperson for a term not exceeding five years regardless of how many years the person served as a Vice-Chairperson prior to his or her appointment as Chairperson.

Aptitude and eligibility requirements of members of the Appeals Tribunal

20.2( 1) Before making appointments to the Appeals Tribunal, the Lieutenant-Governor in Council shall consider

(a) the skills and qualifications required by the Appeals Tribunal as a whole in order for it to carry out its functions, and

(b) the skills and qualification requirements for appointments to the Appeals Tribunal.

20.2( 2) In making appointments to the Appeals Tribunal, the Lieutenant-Governor in Council shall

(a) use a merit-based and objective approach and ensure that the persons appointed have the necessary skills and qualifications to carry out their functions; those skills and qualifications include

( i) being a barrister and solicitor who is a member in good standing of the Law Society of New Brunswick, and

( ii) having experience or education in business, economics, finance, management, accounting, insurance or administrative law, and

(b) ensure that the Appeals Tribunal as a whole has the necessary skills and qualifications to carry out its functions.

20.2( 3) The Appeals Tribunal shall reflect regional, linguistic and gender diversity.

Remuneration and expenses

20.3( 1) The members of the Appeals Tribunal are entitled to be paid the remuneration fixed by the Lieutenant-Governor in Council.

20.3( 2) A member is entitled to be reimbursed for accommodation, meal and travel expenses reasonably incurred in connection with his or her duties on the Appeals Tribunal in accordance with the Board of Management travel policy guidelines, as amended.

Continuation in office

20.4( 1) Despite subsections 20.1(4) and (5) and subject to section 20.5, a member of the Appeals Tribunal shall remain in office after the expiry of the member’s term until he or she resigns or is reappointed or replaced.

20.4( 2) If a Vice-Chairperson of the Appeals Tribunal resigns or is replaced, the Chairperson of the Appeals Tribunal may authorize that person to carry out and complete the duties and exercise any powers that the person would have had, if the person had not ceased to be a member, in connection with any matter in respect of which there was a hearing in which the person participated as a member.

20.4( 3) An authorization under subsection (2) continues until a final decision in respect of the matter is made.

20.4( 4) If a person performs duties or exercises powers under subsection (2), section 20.3 continues to apply as though the person were still a member.

Removal from office

20.5 The appointment of the Chairperson or a Vice-Chairperson of the Appeals Tribunal may be revoked by the Lieutenant-Governor in Council for cause.

Vacancy or temporary absence

20.6( 1) A vacancy on the Appeals Tribunal does not impair the capacity of the Appeals Tribunal to act.

20.6( 2) If a vacancy occurs on the Appeals Tribunal, the Lieutenant-Governor in Council may appoint a person to fill the vacancy for the balance of the term of the Chairperson or Vice-Chairperson replaced.

20.6( 3) Before appointing a person to fill the vacancy under subsection (2), the Lieutenant-Governor in Council shall consider

(a) the skills and qualifications required by the Appeals Tribunal as a whole in order for it to carry out its functions, and

(b) the skills and qualification requirements for appointments to the Appeals Tribunal.

20.6( 4) In making an appointment to fill the vacancy under subsection (2), the Lieutenant-Governor in Council shall

(a) use a merit-based and objective approach and ensure that the persons appointed have the necessary skills and qualifications to carry out their functions; those skills and qualifications include

( i) being a barrister and solicitor who is a member in good standing of the Law Society of New Brunswick, and

( ii) having experience or education in business, economics, finance, management, accounting, insurance or administrative law, and

(b) ensure that the Appeals Tribunal as a whole has the necessary skills and qualifications to carry out its functions.

20.6( 5) In the case of the temporary absence, illness or incapacity to act of the Chairperson of the Appeals Tribunal, the Minister may appoint a Vice-Chairperson of the Appeals Tribunal as acting Chairperson for the period of the temporary absence, illness or incapacity.

Powers of the Appeals Tribunal

20.7( 1) Subject to this Act and the regulations, the Appeals Tribunal, with respect to its objects, has the capacity, rights, powers and privileges of a natural person, including the power to

(a) enter into any agreement with any government, person, organization, institution or other body,

(b) acquire and hold assets and property, both real and personal, by way of purchase, lease, grant, hire, exchange or otherwise and to dispose of such property by any means,

(c) provide for the management of its property and assets and of its affairs and business, including the appointment of staff,

(d) establish forms, practices and procedures for the efficient conduct of appeals to the Appeals Tribunal and for the effective operation of the Appeals Tribunal, and

(e) do such things as are incidental or necessary to the exercise of the powers referred to in paragraphs (a) to (d).

16 Section 21 of the Act is amended

(a) by adding after subsection (2.1) the following:

21( 2.2) If an appeal is made under this section, the Chairperson of the Appeals Tribunal shall immediately deliver a notice of the appeal to the Commission, the Office of the Workers’ Advocate and the Office of the Employers’ Advocate that includes

(a) the grounds of the appeal, and

(b) the identification of any policies approved by the Commission that, in the opinion of the Appeals Tribunal, may be applicable to the issues in the appeal.

(b) by repealing subsection (4) and substituting the following:

21( 4) An appeal to the Appeals Tribunal shall be heard by one of its members, chosen by the Chairperson of the Appeals Tribunal.

21( 4.1) Despite subsection (4), a panel of two or more members chosen by the Chairperson of the Appeals Tribunal may hear an appeal if, in the opinion of the Chairperson, exceptional circumstances of the case require it.

21( 4.2) The Chairperson of the Appeals Tribunal shall decide if the appeal is to proceed by oral hearing, including in person, by video conference or telephone conference, or by written submission and shall immediately deliver a notice of the decision to the parties.

21( 4.3) A party to an appeal may make a request to the Chairperson of the Appeals Tribunal to review the Chairperson’s decision made under subsection (4.2) if in the opinion of the party to an appeal exceptional circumstances justify the request.

21( 4.4) The request referred to in subsection (4.3) shall be made within 14 days after receiving the notice of the decision and set out in writing the exceptional circumstances that justify the request.

21( 4.5) On receiving a request under subsection (4.3), the Chairperson of the Appeals Tribunal shall review his or her decision and make a decision confirming or varying the decision under review within seven days of receiving the request to review.

21( 4.6) Subsection (4.5) shall not be construed as requiring the Chairperson of the Appeals Tribunal to hold an oral hearing if a party to an appeal makes a request under subsection (4.3).

21( 4.7) A decision of the Chairperson of the Appeals Tribunal made under subsection (4.5) shall be final.

(d) by repealing subsection (5);

(e) by repealing subsection (7);

(f) by adding after subsection (8) the following:

21( 8.1) The Commission shall have standing in any appeal to the Appeals Tribunal involving any question as to the interpretation or application of this Act or the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act or the policies approved by the Commission.

21( 8.2) In an appeal, the Appeals Tribunal may receive and accept information that it considers relevant, whether or not the information would be admissible in a court of law.

(g) by repealing subsection (9) and substituting the following:

21( 9) In an appeal, the Appeals Tribunal shall

(a) make its decision based on the real merits and justice of the case, including whether a policy approved by the Commission is consistent with this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act,

(b) apply a policy approved by the Commission that is applicable in the case, to the extent that the policy is not inconsistent with this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, and

(h) by repealing subsection (10) and substituting the following:

21( 10) The Appeals Tribunal shall issue a written decision, signed by a member of the Appeals Tribunal hearing the appeal, embodying the substance of any decision, determination, direction, declaration, order, interim order or ruling of the Appeals Tribunal,

(a) if the appeal proceeds by oral hearing, within 90 days following the last hearing day, and

(b) if the appeal proceeds by written submission, within 90 days following the filing of all required documents.

(i) by repealing subsection (11);

(j) by adding after subsection (12) the following:

21( 12.1) Unless the Appeals Tribunal otherwise determines, a decision of the Appeals Tribunal shall be implemented by the Commission within 30 days of issuing the decision.

21( 12.2) If the Appeals Tribunal determines that a policy approved by the Commission is inconsistent with this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, the decision binds the Commission in respect of any matter before the Commission.

(k) by repealing subsection (13) and substituting the following:

21( 13) If the person designated in an order of the Appeals Tribunal under paragraph (1)(c) does not comply with the order, the Appeals Tribunal may file a copy of the order in The Court of Queen’s Bench of New Brunswick and upon filing, the order shall be entered and recorded in the Court, and when so entered and recorded becomes a judgment of the Court and may be enforced as such against the person designated therein.

(l) by repealing subsection (15) and substituting the following:

21( 15) Notice of any decision, order or ruling of the Appeals Tribunal where not otherwise provided for in this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act shall be given by the Appeals Tribunal in a manner deemed by the Appeals Tribunal to be adequate and proper.

17 Section 23 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

23( 1) Within 30 days after receipt of notice of a decision, order or ruling of the Appeals Tribunal, any party directly affected by the decision, order or ruling, and intending to appeal therefrom shall apply to the Appeals Tribunal for a statement of the facts considered by the Appeals Tribunal and of the grounds taken by the Appeals Tribunal in making such decision, order or ruling, and the Appeals Tribunal shall within 30 days provide the party with such information, certified by the Chairperson of the Appeals Tribunal.

(b) by repealing subsection (2) and substituting the following:

23( 2) The statement of facts under subsection (1) shall include a copy of the written decision, order or ruling of the Appeals Tribunal, a transcript of the proceedings before the Appeals Tribunal and all evidence presented to the Appeals Tribunal.

23( 7) The Commission may

(a) of its own motion state a case in writing for the opinion of the Court of Appeal upon any question that in the opinion of the Commission is a question as to its jurisdiction or a question of law, and

(b) appeal a decision of the Appeals Tribunal to the Court of Appeal on any question that is a question as to the interpretation or application of this Act or a policy approved by the Commission, if that question was raised in the appeal to the Appeals Tribunal by the Commission.

(d) by adding after subsection (7) the following:

23( 7.1) The Appeals Tribunal may of its own motion state a case in writing for the opinion of the Court of Appeal on any question that in the opinion of the Appeals Tribunal is a question as to its jurisdiction or a question of law.

(e) in subsection (8) by striking out “herewith” and substituting “with this section”.

18 The Act is amended by adding the following after section 23:

Annual report

23.1 The Chairperson of the Appeals Tribunal shall annually make a report to the Minister respecting its activities under this Act that is satisfactory to the Minister and includes any information required by the Minister.

19 The Act is amended by adding after section 24 the following:

Annual grant

24.1( 1) The Commission shall make an annual grant to the Department of Post-Secondary Education, Training and Labour equal to the cost, including salaries and administration, of providing the services of the Appeals Tribunal under this Act.

24.1( 2) The grant referred to in subsection (1) shall be paid out of the Accident Fund.

20 Paragraph 25(b) of the Act is repealed.

21 Section 25.1 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

25.1( 1) A certificate purporting to be signed by the President and Chief Executive Officer of the Commission or the Chairperson of the Appeals Tribunal shall, in the absence of evidence to the contrary, be admitted in evidence as proof of the facts stated in it without proof of the appointment, authority or signature of the person signing it and may

(a) set out the substance of any order, ruling or decision of the Commission or the Appeals Tribunal, as the case may be, and

(b) set out information from any books, records, documents or files of the Commission or the Appeals Tribunal, as the case may be, in the form of an extract or description.

(b) in subsection (3) by striking out “President and Chief Executive Officer” and substituting “President and Chief Executive Officer or the Chairperson of the Appeals Tribunal, as the case may be,”.

22 The Act is amended by adding after section 25.1 the following:

Meetings of the Commission and Appeals Tribunal

25.2 The Commission and the Appeals Tribunal shall meet two times per year to discuss their activities and issues of mutual concern.

23 Section 26 of the Act is amended

(a) by adding after paragraph (a) the following:

(a.1) prescribing the form and use of any records, reports, certificates, declarations and documents as may be required by the Appeals Tribunal,

(b) in paragraph (d) by striking out “and” at the end of the paragraph;

(d.1) respecting conflict of interest, disclosure and divestiture in relation to members of the Appeals Tribunal and employees of the Appeals Tribunal and enforcement of such provisions, and

TRANSITIONAL PROVISIONS

Transitional provisions

24 The appointments of the Chairperson of the Appeals Tribunal and Vice-Chairpersons of the Appeals Tribunal who hold office immediately before the commencement of this section are revoked.

25 All contracts, agreements and orders relating to allowances, fees, salaries, expenses, remuneration and compensation to be paid to the Chairperson of the Appeals Tribunal and Vice-Chairpersons of the Appeals Tribunal who hold office immediately before the commencement of this section are null and void.

26 Despite the provisions of any contract, agreement or order, no allowance, fee, salary, expenses, remuneration or compensation shall be paid to the Chairperson of the Appeals Tribunal and Vice-Chairpersons of the Appeals Tribunal who hold office immediately before the commencement of this section.

27 No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the revocation of appointments under section 24.

28 Despite section 24, the Chairperson of the Appeals Tribunal and Vice-Chairpersons of the Appeals Tribunal appointed to the Appeals Tribunal after the coming into force on this section may authorize a member of the Appeals Tribunal who holds office immediately before the commencement of this section to complete any process, hearing, question or other thing commenced before the coming into force of this section.

29 Section 15 of the Act as it existed immediately before the coming into force of this Act shall apply to the Chairperson or former Chairperson and Vice-Chairpersons or former Vice-Chairpersons of the Appeals Tribunal who held office before the commencement of this section.

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Auditor General Act

30 Section 1 of the Auditor General Act, chapter 118 of the Revised Statutes, 2011, is amended in the definition “agency of the Crown” in paragraph (j) by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”.

Blind Workmen’s Compensation Act

31 Section 2 of the Blind Workmen’s Compensation Act, chapter B-6 of the Revised Statutes, 1973, is amended by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”.

Emergency Measures Act

32 Section 1 of the Emergency Measures Act, chapter 147 of the Revised Statutes, 2011, is amended in the definition “Workplace Health, Safety and Compensation Commission” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”.

Firefighters’ Compensation Act

33 Section 1 of the Firefighters’ Compensation Act, chapter F-12.5 of the Acts of New Brunswick, 2009, is amended

(a) in the definition “Disability Fund” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

(b) in the definition “Commission” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

“Appeals Tribunal” means the Workers’ Compensation Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act; (Tribunal d’appel)

Occupational Health and Safety Act

34( 1) Section 1 of the Occupational Health and Safety Act, chapter O-0.2 of the Acts of New Brunswick, 1983, is amended

(a) in the definition “Commission” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

(b) by repealing the definition “Appeals Tribunal” and substituting the following:

34( 2) Subsection 37(2.1) of the Act is amended by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”.

Public Service Labour Relations Act

35 The First Schedule of the Public Service Labour Relations Act, chapter P-25 of the Revised Statutes, 1973, is amended in Part I by adding after

Service New Brunswick

the following:

Workers’ Compensation Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act

Regulation under the Personal Health Information Privacy and Access Act

36 Paragraph 7(k) of New Brunswick Regulation 2010-112 under the Personal Health Information Privacy and Access Act is repealed and the following is substituted:

(k) the Workers’ Compensation Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act.

Special Payment to Certain Dependent Spouses of Deceased Workers Act

37 The Special Payment to Certain Dependent Spouses of Deceased Workers Act, chapter S-12.107 of the Acts of New Brunswick, 2000, is amended

(a) in section 1

( i) in the definition “Accident Fund” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

( ii) in the definition “Commission” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

(b) in subsection 4(2) by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”.

Workers’ Compensation Act

38 Section 1 of the Workers' Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended

(a) in the definition “Accident Fund” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

(b) in the definition “Commission” by striking out “and Compensation Commission Act” and substituting “and Compensation Commission and Workers’ Compensation Appeals Tribunal Act”;

Commencement

39 This Act comes into force on April 1, 2015.