Bill 13 - An Act Respecting the Firefighters’ Compensation Act and the Workers’ Compensation Act

BILL 13

An Act Respecting the Firefighters’ Compensation Act and the Workers’ Compensation Act

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

Firefighters’ Compensation Act

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

(a) by repealing the definition “average earnings” and substituting the following:

“average earnings” means the daily, weekly, monthly or other regular remuneration that a firefighter or former firefighter was receiving at the time of disablement, or receiving previously or at the time of loss of earnings or at the time of death, that the Commission considers best represents the earnings of the firefighter or former firefighter unless it is established to the satisfaction of the Commission that under normal circumstances, based on the firefighter or former firefighter’s age and ongoing occupational, trade, technical or professional training, the earnings would have probably increased, in which case this fact should be considered in determining the average earnings, and in no case shall average earnings exceed the maximum annual earnings. (gains moyens)

(b) in the definition “member of the family” by striking out “father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother and half-sister, and a person who stood in loco parentis” and substituting “parent, grandparent, step-parent, child, grandchild, stepchild, sibling and half-sibling, and a person who stood in the place of a parent”;

(c) in the English version of the definition “dependant” by striking out “his or her” wherever it appears and substituting “their”.

1( 2) Section 2 of the English version of the Act is repealed and the following is substituted:

2 If a firefighter or former firefighter is paid a sum of money to cover any special expenses imposed on them by the nature of their employment, that sum shall not be included as part of the firefighter or former firefighter’s earnings.

1( 3) Section 4 of the English version of the Act is amended by striking out “as in his regular employment” and substituting “as in their regular employment”.

1( 4) Section 5 of the English version of the Act is amended

(a) in subsection (1)

( i) in the portion preceding paragraph (a) by striking out “his or her” and substituting “their”;

( ii) in paragraph (a) by striking out “his or her” and substituting “their”;

( iii) in subparagraph (b)(ii) by striking out “his or her” and substituting “their”;

(b) in subsection (2) by striking out “his or her” and substituting “their”.

1( 5) Subsection 7(2) of the English version of the Act is amended by striking out “he or she” and substituting “they”.

1( 6) Section 9 of the English version of the Act is amended

(a) in subsection (1) by striking out “himself or herself”;

(b) in subsection (2) by striking out “his or her” and substituting “their”;

1( 7) Section 13 of the English version of the Act is amended

(a) in the portion preceding paragraph (1)(a) by striking out “disability” and substituting “disablement”;

(b) in subsection (2) by striking out “his or her” and substituting “their”.

1( 8) Subsection 14(2) of the English version of the Act is amended by striking out “his or her” wherever it appears and substituting “their”.

1( 9) Subsection 15(1) of the Act is amended by striking out “in accordance with a rating schedule prescribed by regulation” and substituting “in accordance with the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, as amended from time to time”.

1( 10) Section 16 of the English version of the Act is amended

(a) in subsection (1) by striking out “he or she receives” and substituting “they receive”;

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

16( 2) If a firefighter or former firefighter receives a retroactive payment under the Canada Pension Plan Act (Canada) with respect to the disablement and the compensation paid by the Commission under this Act has not been reduced under subsection (1) and if the firefighter or former firefighter assigns the payment to the Commission and subsequently pays income tax on the amount assigned, the Commission shall reimburse an amount from the Disability Fund that, in the opinion of the Commission, is equivalent to the income tax paid on the amount assigned.

1( 11) Section 17 of the English version of the Act is amended

(a) in subsection (1) by striking out “him or her” and “his or her” and substituting “them” and “their”, respectively;

(b) in subsection (2) by striking out “and he or she is” and “from him or her for” and substituting “and is” and “for”, respectively.

1( 12) Section 19 of the Act is amended

(a) in subsection (1) of the English version by striking out “him or her” and substituting “the firefighter or former firefighter”;

(b) in subsection (4) of the English version by striking out “him or her” and substituting “the firefighter or former firefighter”;

19( 6) If a firefighter or former firefighter is entitled to a pension under subsection (1) and the amount set aside for a purchase of an annuity in accordance with the regulations would be less than 60% of the New Brunswick Industrial Aggregate Earnings, the Commission may, instead of that pension, pay to the firefighter or former firefighter at the age of 65 years the accumulated capital and the return, whether positive or negative, on the accumulated capital.

(d) in subsection (7) of the English version by striking out “him or her” and “his or her” and substituting “the firefighter or former firefighter” and “their”, respectively.

1( 13) The Act is amended by adding before section 21 the following:

Survivors’ benefits for deaths occurring on or after July 1, 2025

20.1( 1) If a firefighter or former firefighter who meets the requirements of section 5 dies as a result of a heart attack or prescribed disease on or after July 1, 2025, benefits are payable to their dependants in accordance with this section.

20.1( 2) If a firefighter or former firefighter is survived by a dependent spouse, the Commission shall pay to that spouse, up to the age of 65 years, benefits equal to 90% of the firefighter or former firefighter’s average net earnings, based on their average earnings as determined by the Commission.

20.1( 3) The Commission shall review the benefits payable to a surviving dependent spouse under subsection (2) each year as of the anniversary date of the death of the firefighter or former firefighter, and for the purposes of that review, the average earnings of the firefighter or former firefighter as previously determined by the Commission shall be adjusted in accordance with the percentage increase in the New Brunswick Industrial Aggregate Earnings.

20.1( 4) If there is a dependent child of the firefighter or former firefighter and the surviving dependent spouse is unable or unwilling to care for the child, the surviving dependent spouse subsequently dies, or the firefighter or former firefighter leaves no surviving dependent spouse, the Commission shall pay benefits to the guardian of the child as follows:

(a) for a child up to but not including 7 years of age, an amount equal to 10% of the New Brunswick Industrial Aggregate Earnings;

(b) for a child of 7 years of age up to and including 13 years of age, an amount equal to 12.5% of the New Brunswick Industrial Aggregate Earnings;

(c) for a child of 14 years of age up to and including 17 years of age, an amount equal to 15% of the New Brunswick Industrial Aggregate Earnings; and

(d) for a child of 18 years of age up to and including 21 years of age, if that child is attending school on a full-time basis, an amount equal to 15% of the New Brunswick Industrial Aggregate Earnings, and such other supplements as the Commission may award.

20.1( 5) Adjustments in the benefits payable under subsection (4) due to a change in the child’s age shall become effective the month following the child’s birthday month.

20.1( 6) If benefits are payable for a child of 16 years of age or more under subsection (4), the Commission in its discretion may pay the benefits in whole or in part directly to the child.

20.1( 7) The Commission shall pay benefits for a surviving dependent child who is physically or mentally incapable of earning, without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments set out in subsection (4), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependant.

20.1( 8) If a person, other than a surviving dependent spouse or child referred to in subsection (4) or (7), was dependent on the firefighter or former firefighter at the time of their death, the Commission may pay benefits to that dependant

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependant, on a scale determined by the Commission, having regard to the scale of payments set out in this section, and

(b) for the period that, in the opinion of the Commission, it might reasonably have been expected that the firefighter or former firefighter would have continued to contribute to the support of the dependant, had the firefighter or former firefighter lived.

1( 14) The heading “Survivors’ benefits - general” preceding section 21 of the Act is amended by striking out “benefits - general” and substituting “benefits for deaths occurring before July 1, 2025 – general”.

1( 15) Section 21 of the Act is repealed and the following is substituted:

21 If a firefighter or former firefighter who meets the requirements of section 5 dies as a result of a heart attack or prescribed disease before July 1, 2025, benefits are payable to their dependants in accordance with section 22 and section 24 or 25.

1( 16) The heading “Survivors’ benefits - first year” preceding section 22 of the Act is repealed and the following is substituted:

Survivors’ benefits for deaths occurring before July 1, 2025 – first year

1( 17) Section 22 of the Act is amended

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

22( 1) If a firefighter or former firefighter to whom section 21 applies is survived by a dependent spouse, the Commission shall pay to that spouse for one year or to the age of 65 years, whichever occurs first, benefits equal to 80% of the firefighter’s or former firefighter’s average net earnings, based on their average earnings as determined by the Commission.

(b) by adding after subsection (1) the following:

22( 1.1) On and after July 1, 2025, the reference to “80%” in subsection (1) shall be read as a reference to “85%”.

(c) in subsection (2) of the English version in the portion preceding paragraph (a) by striking out “surviving child” and substituting “dependent child”;

(d) in subsection (5) by striking out “dependent invalid child” and “ceases to be an invalid or dependant” and substituting “dependent child who is physically or mentally incapable of earning” and “is capable of earning or ceases to be a dependant”, respectively;

(e) in subsection (6) of the English version

( i) in the portion preceding paragraph (a) by striking out “his or her” and substituting “their”;

( ii) in paragraph (b) by striking out “he or she” and substituting “they”.

1( 18) The heading “Election as to benefits” preceding section 23 of the Act is repealed and the following is substituted:

Election as to benefits for deaths occurring before July 1, 2025

1( 19) Subsection 23(1) of the Act is repealed and the following is substituted:

23( 1) Within one year after the date of death of a firefighter or former firefighter to whom section 21 applies, a surviving dependent spouse shall elect to receive benefits in accordance with section 24 or 25.

1( 20) The heading “Election - 85% average net earnings model” preceding section 24 of the Act is repealed and the following is substituted:

Election for deaths occurring before July 1, 2025 – average net earnings model

1( 21) Section 24 of the Act is amended

(a) in subsection (2) of the English version by striking out “his or her” and substituting “their”;

(b) by adding after subsection (3) the following:

24( 3.1) On and after July 1, 2025, the references to “85%” in subsections (2) and (3) shall be read as references to “90%”.

(c) in subsection (6) of the English version in the portion preceding paragraph (a) by striking out “surviving child” and substituting “dependent child”;

(d) in subsection (9) by striking out “dependent invalid child” and “ceases to be an invalid or dependant” and substituting “dependent child who is physically or mentally incapable of earning” and “is capable of earning or ceases to be a dependant”, respectively;

(e) in subsection (10) of the English version

( i) in the portion preceding paragraph (a) by striking out “his or her” and substituting “their”;

( ii) in paragraph (b) by striking out “he or she” and substituting “they”.

1( 22) The heading “Election - 60% average net earnings model” preceding section 25 of the Act is repealed and the following is substituted:

Election for deaths occurring before July 1, 2025 – lump sum payment and average net earnings model

1( 23) Section 25 of the Act is amended

(a) in paragraph (1)(b) of the English version by striking out “his or her” and substituting “their”;

(b) by adding after subsection (1) the following:

25( 1.1) On and after July 1, 2025, the reference to “60%” in paragraph (1)(b) shall be read as a reference to “65%”.

(c) in subsection (7) by striking out “dependent invalid child” and “ceases to be an invalid or dependant” and substituting “dependent child who is physically or mentally incapable of earning” and “is capable of earning or ceases to be a dependant”, respectively;

(d) in subsection (8) of the English version

( i) in the portion preceding paragraph (a) by striking out “his or her” and substituting “their”;

( ii) in paragraph (b) by striking out “he or she” and substituting “they”.

1( 24) Section 26 of the Act is amended

(a) by adding before subsection (1) the following:

26( 0.1) If benefits are paid to a surviving dependent spouse under subsection 20.1(2), the Commission shall, as of the first day benefits are paid under that subsection, set aside an amount equal to 10% of the benefits paid to the spouse under that subsection, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

(b) by adding after subsection (1) the following:

26( 1.1) Despite subsection (1), on and after July 1, 2025, the Commission shall set aside an amount equal to 10% of the benefits paid to a surviving dependent spouse under subsection 24(2) on and after that date, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

26( 2.1) Despite subsection (2), on and after July 1, 2025, the Commission shall set aside an amount equal to 10% of the benefits paid to a surviving dependent spouse under subsection 25(1) on and after that date, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

(d) in subsection (3) by striking out “Subsection (1) applies” and substituting “Subsections (1) and (1.1) apply”;

(e) in subsection (4) by striking out “Subsection (2) applies” and substituting “Subsections (2) and (2.1) apply”;

(f) by adding after subsection (5) the following:

26( 5.1) On and after July 1, 2025, the reference to “5%” in subsection (5) shall be read as a reference to “10%”.

(g) in subsection (6) by striking out “subsection 22(1), 24(2) or 25(1)” and substituting “subsection 20.1(2), 22(1), 24(2) or 25(1)”;

(h) by repealing subsection (8) and substituting the following:

26( 8) If a surviving dependent spouse is entitled to a pension and the amount set aside for a purchase of an annuity in accordance with the regulations would be less than 60% of the New Brunswick Industrial Aggregate Earnings, the Commission may, instead of that pension, pay the accumulated capital and the return, whether positive or negative, on the accumulated capital to the spouse at the age of 65 years.

(i) in subsection (10) of the English version by striking out “his or her” and substituting “their”.

1( 25) Section 27 of the Act is amended by striking out “section 22, 24 or 25” and substituting “section 20.1, 22, 24 or 25”.

1( 26) Section 28 of the Act is amended by striking out “sections 22, 24 or 25” and substituting “section 20.1, 22, 24 or 25”.

1( 27) Section 31 of the English version of the Act is amended

(a) in subsection (1) by striking out “he or she” wherever it appears and substituting “they”;

(b) in subsection (2) by striking out “he or she” and substituting “the person”.

1( 28) The heading “Payment to mentally disabled person” preceding section 36 of the Act is amended by striking out “mentally disabled person” and substituting “a person mentally incapable of managing financial affairs”.

1( 29) Section 36 of the Act is repealed and the following is substituted:

36 The Commission may, in the case of a person who is mentally incapable of managing their financial affairs, make payments to a person that, in the opinion of the Commission, is best qualified in the circumstances to administer the payments, whether or not the person to whom the payment is made is the legal guardian of the person who is incapable of managing their financial affairs.

1( 30) Section 38 of the English version of the Act is amended

(a) in subparagraph (2)(b)(i) by striking out “his or her” and substituting “their”;

(b) in subsection (4) by striking out “he or she has met” and substituting “meeting”;

1( 31) Section 39 of the Act is amended

(a) in subsection (1) of the English version by striking out “he or she” and substituting “they”;

(b) in subsection (3) of the French version by striking out “Est forclos, tout recours intenté” and substituting “Aucun recours ne peut être intenté”.

1( 32) Section 41 of the English version of the Act is amended

(a) in subsection (1) by striking out “his or her” wherever it appears and substituting “their”;

(b) in subsection (2) by repealing the portion preceding paragraph (a) and substituting the following:

41( 2) No municipality or rural community that employs a person as a firefighter shall dismiss, suspend, lay off, penalize, discipline or discriminate against them because they have a disablement in respect of which they are, in the opinion of the Commission, entitled to make a claim for compensation under this Act, from the date of the disablement to the later of

( i) in paragraph (a) by striking out “he or she was” and substituting “they were”;

( ii) in paragraph (b) by striking out “he or she was” and substituting “they were”;

( iii) by repealing paragraph (d) and substituting the following:

(d) permit the person to resume work in the position they held immediately before the commencement of the period in respect of which the person was entitled to compensation under this Act or in an equivalent position, with no decrease in pay and with no loss of seniority or benefits accrued up to the commencement of that period, or

( iv) in paragraph (e) by striking out “him or her” and “he or she is” and substituting “the person” and “the person is”, respectively;

(d) in subsection (6) by striking out “to him or her” and substituting “to them”.

1( 33) Subsection 43(1) of the English version of the Act is amended by striking out “by him or her”.

1( 34) Subsection 44(1) of the English version of the Act is amended by striking out “his or her” and substituting “the firefighter’s”.

1( 35) Subsection 52(2) of the English version of the Act is amended by striking out “he or has” and substituting “they have”.

1( 36) Subsection 54(1) of the English version of the Act is amended

(a) in paragraph (b) by striking out “his or her” and substituting “each firefighter’s”;

(b) in paragraph (c) by striking out “his or her” and substituting “each firefighter’s”.

1( 37) Subsection 57(2) of the English version of the Act is amended by striking out “his or her” and substituting “their”.

1( 38) Paragraph 61(1)(d) of the Act is repealed.

Regulation under the Firefighters’ Compensation Act

2 New Brunswick Regulation 2009-72 under the Firefighters’ Compensation Act is amended

(a) by repealing the heading “Permanent physical impairment” preceding section 6;

(b) by repealing section 6;

( i) in subsection (1) by striking out “section 22, 24 or 25” and substituting “section 19, 20.1, 22, 24 or 25”;

( ii) in paragraph (2)(f) of the English version by striking out “his or her” and substituting “their”.

Workers’ Compensation Act

3( 1) Section 1 of the Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended

(a) by repealing the following definitions:

“invalid”;

“outworker”;

(b) in the definition “average earnings” by striking out “section 37, 38.1, 38.101, 38.11, 38.2, 38.51, 38.52, 38.53, 38.6 or 48” and substituting “section 37, 38.1, 38.101, 38.11, 38.2, 38.501, 38.51, 38.52, 38.53, 38.6 or 48”;

(c) in the definition “member of the family” by striking out “father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother and half-sister, and a person who stood in loco parentis” and substituting “parent, grandparent, step-parent, child, grandchild, stepchild, sibling and half-sibling, and a person who stood in the place of a parent”;

(d) in the English version in the definition “dependents” by striking out “his” wherever it appears and substituting “the worker’s”;

(e) in the English version in the definition “employer” in paragraph (a) by striking out “in his service” and substituting “in their service”;

(f) in the English version in the definition “medical aid” by striking out “his” and substituting “the chiropractor’s”.

3( 2) Subsection 2(3) of the Act is amended

(a) by repealing paragraph (a);

(b) by repealing paragraph (b);

3( 3) Section 2.1 of the English version of the Act is amended by striking out “he or she is” and substituting “they are”.

3( 4) Subsection 4(2) of the English version of the Act is amended by striking out “for himself or his dependents” and substituting “for themselves or their dependents”.

3( 5) Section 7 of the Act is amended

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

7( 1) When an accident arising out of and in the course of the worker’s employment in an industry within the scope of this Part causes personal injury or death to a worker, compensation shall be paid to that worker or the worker’s dependents, as the case may be, in accordance with the following provisions, unless the accident was, in the opinion of the Commission, intentionally caused by the worker, or was wholly or principally due to intoxication or serious or wilful misconduct on the part of the worker and did not result in the death or serious and permanent disability of the worker.

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

7( 3) When a worker is engaged in work of which part is to be performed in this Province and part in another province or country, the work shall be considered as done and performed in this Province, with the worker or the worker’s dependents being entitled to be paid compensation under this Part, and the employer shall include that worker in the payroll submitted to the Commission and notify the Commission that one or more worker included in the payroll may be so engaged, but if the employer fails to include that worker in the payroll and notify the Commission accordingly, the employer shall be individually liable for the payment of the compensation to the injured worker or the worker’s dependents, as the case may be, unless it can be shown that the worker is entitled to compensation under a compensation Act of the other province or country.

3( 6) Section 8.1 of the English version of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “his” and substituting “the worker’s”;

(b) in subsection (4) by striking out “his or her” and “him or her” and substituting “their” and “the worker or dependent”, respectively;

3( 7) Section 9 of the English version of the Act is repealed and the following is substituted:

9 If a worker suffers an accident in the course of their employment in circumstances that entitle the worker or the worker’s dependents to any claim or right of action against the employer under or by virtue of any statute of Canada, or of the United Kingdom of Great Britain and Northern Ireland, the worker or dependents are entitled to compensation under this Part to the extent to which the compensation under this Part would exceed in amount or value the amount or value of that claim or right of action; but if the worker or the worker’s dependents execute and give a full and effective release of the employer from any claim or right of action, the Commission may pay to that worker or dependents the full amount of compensation provided by this Part.

3( 8) Section 10 of the English version of the Act is amended

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

10( 1) Subject to section 11, if a worker suffers an accident in the course of their employment in circumstances that entitle the worker or the worker’s dependents to bring an action against some person other than the employer, the worker or the worker’s dependents, if entitled to compensation under this Part, may either claim compensation or bring the action.

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

10( 2) If a worker suffers an accident in the course of their employment in circumstances that entitle the worker or the worker’s dependents to bring an action against some person other than the employer and the worker or the worker’s dependents collect any amount from the person against whom the action may be brought before the action is brought, they shall be deemed for the purposes of this section to have brought an action.

(d) in subsection (5) by striking out “he is” and substituting “the worker is”;

(e) in subsection (6) by striking out “his care” and substituting “their care”;

(f) in subsection (7)

( i) in paragraph (b) by striking out “his” and substituting “the worker’s”;

( ii) in the portion following paragraph (b) by striking out “his or her” and substituting “the worker’s”;

(g) in subsection (8) by striking out “his” wherever it appears and substituting “the worker’s”;

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

10( 10) If a worker or the worker’s dependents, or any combination of them, have claimed compensation under this Part, the Commission shall be subrogated to all rights of that worker or dependents in respect of the injuries to the worker as against the person against whom the action lies and may maintain an action in the name of the worker or the worker’s dependents or in the name of the Commission; and if more is recovered and collected than the amount of the compensation to which the worker or the worker’s dependents would be entitled under this Part, the amount of the excess, less costs and administration charges, shall be paid to the worker or the worker’s dependents, and that amount shall be deducted from the amount of any future compensation or other benefits to which the worker or the worker’s dependents may become entitled in respect of the accident.

(i) in subsection (12) by striking out “his” wherever it appears and substituting “the worker’s”;

(j) in subsection (13) in the portion preceding paragraph (a) by striking out “his” and substituting “the worker’s”.

3( 9) Subsection 11(1) of the Act is repealed and the following is substituted:

11( 1) In any case within section 10, no employer and no worker of an employer within the scope of this Part or dependent of that worker shall have a right of action against any employer within the scope of this Part or against any worker of that employer, if the workers of both employers were in the course of their employment at the time of the accident, but in any case if it appears to the satisfaction of the Commission that a worker of an employer was injured or killed owing to the negligence of another employer or the worker of that employer, the Commission may direct that the compensation awarded in that case shall be charged against the subclass to which the last mentioned employer belongs.

3( 10) The heading “Part I in lieu of cause of action” preceding section 12 of the English version of the Act is amended by striking out “in lieu” and substituting “instead”.

3( 11) Section 12 of the English version of the Act is amended by striking out “in lieu” and “his” and substituting “instead” and “the worker’s”, respectively.

3( 12) Section 13 of the English version of the Act is amended by striking out “his employer” and “he or his” and substituting “the worker’s employer” and “the worker or the worker’s”, respectively.

3( 13) Section 14 of the English version of the Act is amended by striking out “his workers” and “he” and substituting “the employer’s workers” and “the employer”, respectively.

3( 14) Section 33 of the English version of the Act is amended by striking out “his” and substituting “that person’s”.

3( 15) Section 34 of the Act is amended by adding after subsection (2.1) the following:

34( 2.2) Without limiting the generality of subsection (1), the Commission has exclusive jurisdiction to determine whether a person received compensation or other benefits under this Act or the regulations in an amount in excess of entitlement and to recover the amount of overpayment from the person as a debt due to the Commission.

34( 2.3) Despite subsection (2.2), unless the Commission has provided notice to the person who received the overpayment, no action shall be taken to enforce the debt due to the Commission more than two years after the Commission first had knowledge of the overpayment.

3( 16) Section 37 of the Act is repealed and the following is substituted:

37 For the purposes of sections 38 and 48, average earnings and earning capacity shall be calculated on the daily, weekly, monthly or regular remuneration that the worker was receiving at the time of the injury or receiving previously that the Commission considers best represents the actual loss of earnings suffered by the worker by reason of the injury unless it is established to the satisfaction of the Commission that under normal circumstances, based on the worker’s age and ongoing occupational, trade, technical or professional training, the wages would probably increase, in which case this fact should be considered in determining the average earnings or earning capacity, which in no case shall exceed the New Brunswick Industrial Aggregate Earnings per year.

3( 17) Section 38 of the Act is amended

(a) in subsection (1) of the English version

( i) in the portion preceding paragraph (a) by striking out “section 38.2 the” and substituting “section 38.2, the”;

( ii) in paragraph (f) by striking out “he” and “adapt himself” and substituting “the worker” and “adapt”, respectively;

(b) by repealing subsection (7).

3( 18) Section 38.1 of the Act is amended

(a) in subsection (1)

( i) in the portion preceding the definition “average earnings” by striking out “38.51, 38.52” and substituting “38.501, 38.51, 38.52”;

( ii) by repealing the definition “average earnings” and substituting the following:

“average earnings” means the daily, weekly, monthly or regular remuneration that the worker was receiving at the time of the injury or recurrence of the injury, or receiving previously or at the time of the loss of earnings or at the time of death, that the Commission considers best represents the earnings of the worker, unless it is established to the satisfaction of the Commission that under normal circumstances, based on the worker’s age and ongoing occupational, trade, technical or professional training, the earnings would probably increase, in which case this fact should be considered in determining the worker’s average earnings, and in no case shall average earnings exceed the maximum annual earnings; (salaire moyen)

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

38.1( 2) For the purposes of subsection (1), if the employer was accustomed to paying the worker a sum of money to cover any special expenses imposed by the nature of the worker’s employment, that sum shall not be included as part of the worker’s earnings.

3( 19) Subsection 38.101(9) of the Act is amended by striking out “in accordance with a rating schedule prescribed by regulation” and substituting “in accordance with the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, as amended from time to time”.

3( 20) Subsection 38.11(17) of the Act is amended by striking out “opportunity there” and “in accordance with a rating schedule prescribed by regulation” and substituting “opportunity, there” and “in accordance with the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, as amended from time to time”, respectively.

3( 21) Section 38.2 of the Act is amended

(a) in subsection (6) of the English version by striking out “his” wherever it appears and substituting “the worker’s”;

(b) in subsection (7) of the English version by striking out “he” and “his” and substituting “the worker” and “the worker’s”, respectively;

(c) in subsection (8) by striking out “opportunity there” and “in accordance with a rating schedule prescribed by regulation” and substituting “opportunity, there” and “in accordance with the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, as amended from time to time”, respectively.

3( 22) Subsection 38.22(12) of the Act is repealed and the following is substituted:

38.22( 12) If a worker is entitled to a pension under subsection (1) or (2) and the amount set aside for a purchase of an annuity in accordance with the regulations would be less than 60% of the New Brunswick Industrial Aggregate Earnings, the Commission may, instead of that pension, pay to the worker at the age of 65 years the accumulated capital and the return, whether positive or negative, on the accumulated capital.

3( 23) The Act is amended by adding before section 38.51 the following:

Computation of benefits – death of worker on or after July 1, 2025

38.501( 1) If a worker dies on or after July 1, 2025, as a result of an injury incurred either before or after July 1, 2025, benefits shall be payable to the worker’s dependents in accordance with this section.

38.501( 2) If a worker is survived by a dependent spouse, the Commission shall pay to that spouse, up to the age of 65 years, benefits equal to 90% of the worker’s average net earnings, based on the worker’s average earnings as determined by the Commission.

38.501( 3) Benefits awarded to a dependent surviving spouse under this section shall be reviewed each year as of the anniversary date of the death of the worker, and for the purposes of this review, the average earnings of the worker as previously determined by the Commission shall be adjusted in accordance with the percentage increase in the New Brunswick Industrial Aggregate Earnings.

38.501( 4) If there is a dependent child of the worker and the dependent surviving spouse is unable or unwilling to care for the child, the dependent surviving spouse subsequently dies or the worker leaves no dependent surviving spouse, benefits shall be payable to the guardian of the child as follows:

(a) for a child up to but not including 7 years of age, an amount equal to 10% of the New Brunswick Industrial Aggregate Earnings;

(b) for a child of 7 years of age up to and including 13 years of age, an amount equal to 12.5% of the New Brunswick Industrial Aggregate Earnings;

(c) for a child of 14 years of age up to and including 17 years of age, an amount equal to 15% of the New Brunswick Industrial Aggregate Earnings; and

38.501( 5) Adjustments in the benefits payable under subsection (4) due to a change in the child’s age shall become effective the month following the child’s birthday month.

38.501( 6) If benefits are payable for a child of 16 years of age or more under subsection (4), the Commission in its discretion may pay directly to the child, in whole or in part, the benefits payable under that subsection.

38.501( 7) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning, without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments set out in subsection (4), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

38.501( 8) If a dependent other than a dependent surviving spouse or child under subsection (4) or (7) was dependent on the worker at the time of the worker’s death, the Commission may pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payment set out in this section, and

(b) for the period that, in the opinion of the Commission, it might reasonably have been expected that the worker would have continued to contribute to the support of the dependent, had the worker lived.

3( 24) The heading “Computation of benefits – general” preceding section 38.51 of the Act is amended by striking out “general” and substituting “death of worker between January 1, 1998, and June 30, 2025, inclusive”.

3( 25) Section 38.51 of the Act is amended

(a) in subsection (1) by striking out “on or after January 1, 1998” and substituting “between January 1, 1998 and June 30, 2025, inclusive”;

(b) by adding after subsection (2) the following:

38.51( 2.1) On and after July 1, 2025, the reference to “eighty per cent” in subsection (2) shall be read as a reference to “85%”.

(c) in subsection (8) of the English version in the portion preceding paragraph (a) by striking out “surviving child” and substituting “dependent child”;

(d) by repealing subsection (11) and substituting the following:

38.51( 11) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning, without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments set out in subsection (8), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

(e) by repealing subsection (12) of the English version and substituting the following:

38.51( 12) If a dependent other than a dependent surviving spouse or child under subsection (8) or (11) was dependent upon the worker at the time of the worker’s death, the Commission may pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payment set out in this section, and

3( 26) The heading “Computation of benefits – dependent surviving spouse” preceding section 38.52 of the Act is repealed and the following is substituted:

Election of average net earnings model – death of worker between January 1, 1998, and June 30, 2025, inclusive

3( 27) Section 38.52 of the Act is amended

(a) by adding after subsection (1) the following:

38.52( 1.1) On and after July 1, 2025, the references to “eighty-five per cent” in subsections (1) and (2) shall be read as references to “90%”.

(b) in subsection (6) of the English version in the portion preceding paragraph (a) by striking out “surviving child” and substituting “dependent child”;

38.52( 9) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments laid down in subsection (6), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

(d) by repealing subsection (10) of the English version and substituting the following:

38.52( 10) If a dependent other than a dependent surviving spouse or child under subsection (6) or (9) was dependent upon the worker at the time of the worker’s death, the Commission may pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payments set out in this section, and

3( 28) The heading “Idem” preceding section 38.53 of the Act is repealed and the following is substituted:

Election of lump sum payment and average net earnings model – death of worker between January 1, 1998, and June 30, 2025, inclusive

3( 29) Section 38.53 of the Act is amended

(a) in paragraph (1)(b) of the English version by striking out “his or her” and substituting “the worker’s”;

(b) by adding after subsection (1) the following:

38.53( 1.1) On and after July 1, 2025, the reference to “sixty per cent” in paragraph (1)(b) shall be read as a reference to “65%”.

38.53( 7) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments set out in subsection (3), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

(d) by repealing subsection (8) of the English version and substituting the following:

38.53( 8) If a dependent other than a dependent surviving spouse or child under subsection (3) or (7) was dependent upon the worker at the time of the worker’s death, the Commission may pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payments set out in this section, and

3( 30) Section 38.54 of the Act is amended

(a) by adding before subsection (1) the following:

38.54( 0.1) If benefits are paid to a dependent surviving spouse under subsection 38.501(2), the Commission shall, as of the first day benefits are paid under that subsection, set aside an amount equal to 10% of the benefits paid to the spouse under that subsection, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

(b) by adding after subsection (1) the following:

38.54( 1.1) Despite subsection (1), on and after July 1, 2025, the Commission shall set aside an amount equal to 10% of the benefits paid to a dependent surviving spouse under subsection 38.52(1) on and after that date, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

38.54( 2.1) Despite subsection (2), on and after July 1, 2025, the Commission shall set aside an amount equal to 10% of the benefits paid to a dependent surviving spouse under subsection 38.53(1) on and after that date, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

(d) by adding after subsection (5) the following:

38.54( 5.1) On and after July 1, 2025, the reference to “five per cent” in subsection (5) shall be read as a reference to “10%”.

(e) in subsection (6) by striking out “subsection 38.51(2), 38.52(1) or 38.53(1)” and substituting “subsection 38.501(2), 38.51(2), 38.52(1) or 38.53(1)”;

(f) by repealing subsection (8) and substituting the following:

38.54( 8) If a dependent surviving spouse is entitled to a pension under this section and the amount set aside for a purchase of an annuity in accordance with the regulations would be less than 60% of the New Brunswick Industrial Aggregate Earnings, the Commission may, instead of that pension, pay the accumulated capital and the return, whether positive or negative, on the accumulated capital to the spouse at the age of 65 years.

3( 31) The heading “Computation of benefits” preceding section 38.6 of the Act is repealed and the following is substituted:

Computation of benefits – death of worker between January 1, 1982, and December 31, 1997, inclusive

3( 32) Section 38.6 of the Act is amended

(a) in subsection (2) of the English version by striking out “his or her” and substituting “the worker’s”;

(b) by adding after subsection (2) the following:

38.6( 2.1) On and after July 1, 2025, the reference to “eighty per cent” in subsection (2) shall be read as a reference to “85%”.

38.6( 3.1) On and after July 1, 2025, the references to “ninety percent” and “ninety per cent” in subsection (3) shall be read as references to “95%”.

(d) in subsection (6) of the English version in the portion preceding paragraph (a) by striking out “surviving child” and substituting “dependent child”;

(e) by repealing subsection (11) and substituting the following:

38.6( 11) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the child on a scale to be determined by the Commission, having regard to the scale of payments set out in subsection (6), but the yearly amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

(f) by repealing subsection (12) of the English version and substituting the following:

38.6( 12) If a dependent other than a dependent surviving spouse or child under subsection (6) or (11) was dependent upon the worker at the time of the worker’s death, the Commission may pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payments set out in this section, and

3( 33) Section 38.7 of the Act is amended

(a) by adding after subsection (1) the following:

38.7( 1.1) Despite subsection (1), on and after July 1, 2025, the Commission shall set aside an amount equal to 10% of the benefits paid to a dependent surviving spouse under subsection 38.6(2) on and after that date, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the spouse at the age of 65 years.

(b) in subsection (2) by striking out “subsection (1)” and substituting “subsection (1) or (1.1)”;

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

38.7( 4) If a dependent surviving spouse is entitled to a pension under subsection (1) or (1.1) and the amount set aside for a purchase of an annuity in accordance with the regulations would be less than 60% of the New Brunswick Industrial Aggregate Earnings, the Commission may, instead of that pension, pay the accumulated capital and the return, whether positive or negative, on the accumulated capital to the surviving spouse at the age of 65 years or at the expiration of the two-year period mentioned in subsection 38.6(2), as the case may be.

(e) in subsection (5) of the English version by striking out “his or her”.

3( 34) Section 38.8 of the Act is amended

(a) in subsection (1) of the English version by striking out “him or her” and substituting “the dependent surviving spouse or other dependent”;

(b) by repealing subsection (6) and substituting the following:

38.8( 6) Benefits shall be payable for a surviving dependent child who is physically or mentally incapable of earning without regard to age who was in receipt of benefits or was eligible for benefits before the coming into force of this section, at a rate reasonable and proportionate to the pecuniary loss to the dependent on a scale determined by the Commission, having regard to the scale of payments set out in subsections (2) and (3), but the annual amount paid by the Commission shall not be less than 15% of the New Brunswick Industrial Aggregate Earnings, and payments to that child shall continue during the lifetime of the child or until the child is capable of earning or ceases to be a dependent.

38.8( 9) If a dependent, other than a dependent surviving spouse under subsection (2) or a child under subsection (3) or (6), was in receipt of benefits or was eligible for survivors’ benefits before the coming into force of this section, the Commission shall continue to pay benefits to the dependent

(a) at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale determined by the Commission, having regard to the scales of payment set out in subsections (2), (3) and (6), and

3( 35) Section 38.91 of the Act is amended

(a) in subsection (1.1) by striking out “section 38.51, 38.52, 38.53 or 38.6” and substituting “section 38.501, 38.51, 38.52, 38.53 or 38.6”;

(b) in subsection (3) by striking out “sections 38.51, 38.52, 38.53, 38.6 and 38.8” and substituting “sections 38.501, 38.51, 38.52, 38.53, 38.6 and 38.8”;

(d) in subsection (7) of the English version by striking out “he” and substituting “that person”.

3( 36) Section 41 of the Act is amended

(a) in subsection (4) of the English version by striking out “if he were himself” and “himself furnishing” and substituting “if the worker were” and “furnishing”, respectively;

(b) by repealing subsection (6) of the English version and substituting the following:

41( 6) When an employer establishes or has established, in connection with any industry carried on by the employer, an arrangement for furnishing medical aid to workers that, in the opinion of the Commission, is at least as favourable to the workers as that provided for in subsection (2), the Commission may, after investigating the facts and considering the wishes of both workers and employer, approve of those arrangements, and as long as the approval continues, those arrangements may be continued instead of the medical aid provided for in this Act, and if an injury is within the scope of this Part, the employer shall be entitled to reimbursement out of the Accident Fund, or to reduction in the rate of assessment as the Commission considers just, but any medical aid furnished or provided shall be subject at all times to the supervision and control of the Commission.

(d) by repealing subsection (11).

3( 37) Section 44 of the English version of the Act is amended

(a) in subsection (1) by striking out “he” and “his claim” and substituting “, the worker or dependent” and “the claim”, respectively;

(b) in subsection (3) by striking out “his” and substituting “the worker’s”;

(c) in paragraph (4.1)(a) in the portion preceding subparagraph (i) by striking out “his or her” and substituting “the worker’s”;

(d) in subsection (6) by striking out “his” and “he” and substituting “the worker’s” and “the worker”, respectively.

3( 38) Section 45 of the Act is amended by striking out “persons of unsound mind” and “person of unsound mind” and substituting “persons who are mentally incapable of managing their financial affairs,” and “person who is mentally incapable of managing their financial affairs”, respectively.

3( 39) Subsection 48(5.1) of the English version of the Act is amended by striking out “1982 who was at the time of his or her death” and substituting “1982, who was at the time of death”.

3( 40) Section 52 of the Act is amended

(a) by repealing paragraph (b) and substituting the following:

(b) the estimated future cost, on a going concern basis, of the claims in paragraph (a) payable during subsequent years;

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

(b.1) a sum for claims incurred in prior years, whether positive or negative, that the Commission considers appropriate to ensure the sustainability of the Accident Fund; and

3( 41) Section 53 of the English version of the Act is amended

(a) in subsection (1) by striking out “all his employees” and “which he estimates he will expend” and substituting “all employees” and “which the employer estimates will be expended”, respectively;

(b) in subsection (2) striking out “his”;

53( 4) If any employer does not file with the Commission the prescribed statement within the prescribed time, the Commission may base any assessment or supplementary assessment on the employer after the prescribed time on a sum that in the Commission’s opinion is the probable amount of the payroll of the employer, and the employer shall be bound, but if it is later ascertained that the amount is less than the actual amount of the payroll, the employer shall be liable to pay to the Commission the difference between the amount for which the employer was assessed and the amount for which the employer would have been assessed on the basis of the payroll.

(d) in subsection (9)

( i) in paragraph (a) by striking out “his” and substituting “the employer’s”;

( ii) in paragraph (b) by striking out “his” wherever it appears and substituting “the employer’s”;

(e) in subsection (10) by striking out “him”, “his” and “he” and substituting “the employer”, “the employer’s” and “the employer”, respectively.

3( 42) Subsection 53.1(2) of the English version of the Act is amended by striking out “his employees” and substituting “the employees”.

3( 43) Section 54 of the Act is amended

(a) in subsection (1)

( i) by repealing paragraph (b) and substituting the following:

(b) the estimated cost, on a going concern basis, of the claims in paragraph (a) payable during subsequent years;

( ii) by adding after paragraph (b) the following:

(b.1) a sum for claims incurred in prior years, whether positive or negative, that the Commission considers appropriate to ensure the sustainability of the Accident Fund; and

( iii) in the English version of paragraph (c) by striking out “such sum as” and substituting “a sum that”;

(b) by repealing subsection (1.1) and substituting the following:

54( 1.1) Despite subsection (1), in the event the Commission incurs a going concern funding deficit in any fiscal year, the Commission shall take the necessary steps following the occurrence of the deficit to assess, levy and collect sufficient funds to fund the deficit within the period of time determined to be reasonable and prudent by the Commission in the circumstances, to a maximum of 15 years.

(c) in subsection (2) of the English version by striking out “by him” and “upon his payroll” and substituting “by the employer” and “upon payroll”, respectively.

3( 44) Subsection 59(2) of the Act is amended by striking out “, and in such newspapers”.

3( 45) Section 60 of the English version of the Act is amended by striking out “his industry” and substituting “the employer’s industry”.

3( 46) Subsection 61(1) of the English version of the Act is amended by striking out “in his employ” and substituting “in the employ of the employer”.

3( 47) Section 62 of the English version of the Act is amended

(a) in subsection (1) by striking out “from him” and substituting “from the employer”;

(b) in subsection (2) by striking out “due by him” and substituting “due by the employer”.

3( 48) Subsection 68(1) of the English version of the Act is amended by striking out “he” and “in his employ” and substituting “the employer” and “in the employ of the employer”, respectively.

3( 49) Section 70 of the English version of the Act is amended

(a) in subsection (1) by striking out “himself” and substituting “the contractor”;

(b) in subsection (2) by striking out “himself” and substituting “the sub-contractor”;

(c) in subsection (3) by striking out “carried on by him” and “or his workers” and substituting “carried on” and “or the sub-contractor’s workers”, respectively.

3( 50) Subsection 75(1) of the English version of the Act is amended by striking out “his payrolls” and substituting “the employer’s payrolls”.

3( 51) Paragraph 81(d) of the Act is repealed.

3( 52) Subsection 83.1(1) of the English version of the Act is amended by striking out “him or her” and substituting “the worker or the worker’s dependent”.

3( 53) Section 85 of the English version of the Act is amended

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

85( 1) If a worker suffers from an occupational disease and is as a result disabled or the worker’s death is caused by an occupational disease and the disease is due to the nature of any employment in which the worker was engaged, whether under one or more employments, the worker is or the worker’s dependents are entitled to compensation as if the disease was a personal injury by accident and the disablement was the happening of the accident, unless at the time of entering into the employment, the worker wilfully and falsely represented in writing that the worker had not previously suffered from the disease.

(b) in subsection (3) by striking out “he is” and substituting “the worker is”;

3( 54) Section 86 of the Act is amended by striking out “servants” and “fishermen” and substituting “workers” and “fishers”, respectively.

3( 55) Section 87 of the English version of the Act is amended

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

87( 1) When personal injury is caused to a worker by reason of any defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with, intended for or used in the business of the worker’s employer or by reason of the negligence of the worker’s employer or any person in the service of the employer acting within the scope of that person’s employment, the worker, or if the injury results in death, the legal personal representative of the worker and any person entitled in case of death, have a right of action against the employer, and if the action is brought by the worker, the worker is entitled to recover from the employer the damages the worker sustained by or in consequence of the injury, and if the action is brought by the legal personal representative of the worker or by or on behalf of persons entitled to damages under the Fatal Accidents Act, they are entitled to recover such damages as they are entitled to under that Act.

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

87( 2) If the execution of any work is being carried into effect under a contract and the person for whom the work is done owns or supplies any ways, works, machinery, plant, building or premises, and by reason of any defect in the condition or arrangement of them, personal injury is caused to a worker employed by the contractor or by a sub-contractor, and the defect arose from the negligence of the person for whom the work or any part of it is done or of some person in that person’s service and acting within the scope of their employment, the person for whom the work or that part of the work is done is liable to the action as if the workers had been employed by that person, and for that purpose shall be deemed to be the employer of the worker within the meaning of this Act, but any such contractor or sub-contractor is liable to the action as if this subsection had not been enacted but not so that double damages are recoverable for the same injury.

(c) in subsection (4) by striking out “his continuing” and “his injury” and substituting “the worker continuing” and “the worker’s injury”, respectively.

3( 56) Subsection 88(1) of the English version of the Act is repealed and the following is substituted:

88( 1) A worker shall be deemed not to have undertaken the risks due to the negligence of the worker’s fellow workers, and contributory negligence on the part of a worker shall not be a bar to recovery by the worker or by any person entitled to damages under the Fatal Accidents Act in an action for the recovery of damages for an injury sustained by, or causing the death of the worker while in the service of the worker’s employer, for which the employer would otherwise have been liable.

Regulations under the Workers’ Compensation Act

4( 1) New Brunswick Regulation 82-165 under the Workers’ Compensation Act is repealed.

4( 2) Section 3 of New Brunswick Regulation 82-210 under the Workers’ Compensation Act is amended

(a) in paragraph (1)(f) of the English version by striking out “his” and substituting “the”;

(b) in subsection (3) in the definition “amount”

( i) in paragraph (a) by striking out “equal to five per cent of the compensation paid to a worker”;

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

(a.1) in the case of a dependent surviving spouse referred to in subsection 38.54(0.1) of the Act, the amount which is set aside in accordance with section 38.54 of the Act,

( iii) in paragraph (b) by striking out “equal to five per cent of the benefits paid to the dependent spouse”;

( iv) in paragraph (c) by striking out “equal to eight per cent of the benefits paid to the dependent spouse”;

( v) in paragraph (d) by striking out “equal to eight per cent of the benefits paid to the dependent spouse”.

4( 3) The English version of New Brunswick Regulation 84-66 under the Workers’ Compensation Act is amended

(a) in section 4 by striking out “his workers such card” and substituting “workers a card”;

(b) in subsection 14(1) by striking out “he” and substituting “the physician or surgeon”;