Introduction

The Standing Committee on Economic Development and Environment ("the committee") is pleased to report on its review of Bill 25: An Act to Amend the Workers' Compensation Act.

Bill 25: An Act to Amend the Workers' Compensation Act, sponsored by the Honourable Alfred Moses, Minister Responsible for the Workers' Safety and Compensation Commission (WSCC), was given second reading in the Legislative Assembly and referred to the Standing Committee on Economic Development and Environment for review on October 26, 2018. For reasons that will be addressed, committee requested an extension to the 120-day review period provided for in the Rules of the Legislative Assembly. Committee thanks the Legislative Assembly for approving this extension, which was granted on February 26, 2019.

Bill 25 proposes to amend the Workers' Compensation Act to:

• Clarify the usage of the terms "impairment" and "disability";
• Add detail respecting who is considered an "employer" within the scope of the act;
• Remove the requirement for a primary healthcare provider;
• Add unemployment benefits as a category of remuneration;
• Authorize the provision of workers' records by healthcare provider to WSCC;
• Authorize information sharing and disclosure for the purpose of improving administration of the act;
• Enable an inspector to inspect healthcare providers' records to verify services received;
• Reduce the time period for filing a review of a commission decision to the review committee or to file a request for an appeal to the Appeals Tribunal; and
• Correct inconsistencies and errors identified in the act.

Background

The Workers' Compensation and Safety Commission is a single corporation providing services to workers in both Nunavut and the Northwest Territories. The multi-jurisdictional nature of the WSCC arises because it predates the division of the Northwest Territories in 1999, when Nunavut was created. At that time, the territorial legislation in place governing the entire Northwest Territories was duplicated, or mirrored, in the new Nunavut legislature in much the same fashion that federal legislation was later duplicated in the Northwest Territories legislature when devolution of responsibility for Crown lands and resources from the federal government to the took place in 2014. This approach has resulted in the WSCC, a single corporate body conducting business in both jurisdictions, being governed by two distinct statutes in two separate jurisdictions.

This situation poses unique challenges with respect to the development and review of Bill 25. In order to ensure that the WSCC can operate in an efficient and effective manner, it is necessary for the two sovereign legislatures to simultaneously consider amendments to two separate, but virtually identical, pieces of legislation. At the same time that the Standing Committee on Economic Development and Environment has been considering Bill 25, the Standing Committee on Legislation of the Legislative Assembly of Nunavut has, therefore, been considering Bill 1. This has necessitated a high degree of collaboration between both legislatures, and both Ministers responsible, to ensure that the initial draft of the bill, and any subsequent amendments made at the committee stage, are coordinated.

While these circumstances are unusual, they are not without precedent. In fact, Nunavut and the Northwest Territories each previously considered coordinated amendments to its own Workers' Compensation Act 2007. In 2015, each jurisdiction passed a Northern Employees Benefits Services Pension Plan Act to govern the Northern Employee Benefits Services, a single, member owned, not-for-profit corporation sponsoring an insurance and healthcare benefits plan, and a pension plan, for certain public sector employees in both Nunavut and the Northwest Territories. More recently, as this Assembly passed Bill 7, Chartered Professional Accountants Act, Nunavut passed Bill 2. These near-identical statutes provide for a newly merged body, the Chartered Professional Accountants of Northwest Territories/Nunavut, to regulate the accounting industry in both territories.

The challenges presented by amending mirrored legislation are not the only challenges presented by this review. In 2014, this Legislative Assembly passed the Health Information Act, governing the collection, retention, and disclosure of health information belonging to NWT residents. Bill 25 deals with the handling of workers' medical information, yet Nunavut does not have legislation similar to our Health Information Act. This need to craft amendments that give consideration to the different protections for medical data and records in each jurisdiction has also been a feature of committee's review.

The general complexity of the Workers' Compensation Act, an unusually busy legislative workload and the high degree of collaboration required between Nunavut and the Northwest Territories, to facilitate concurrent reviews of Bills 8 and 25, are the reasons committee sought an extension to the time period allowed for the review of this bill.

Committee would like to take this opportunity to thank Mr. John Main, Chair of the Standing Committee on Legislation of the Nunavut Legislative Assembly, his colleagues, and staff for their collaborative spirit and forthright communication, which made this review possible.

Committee thanks Minister Moses and his staff for their collaboration and for their prompt responses to committee's questions. Committee also thanks the Minister for his concurrence with amendments to the bill that were proposed by committee.

The Public Review of Bill 25

As always, committee commenced its review by inviting input from stakeholders across the Northwest Territories, including municipal and Indigenous governments, and a number of non-governmental organizations. Committee held a public hearing on Bill 25 in Yellowknife on February 12, 2019.

Committee received written submissions from: the Information and Privacy Commissioner for the Northwest Territories (IPC); Thomas ADR, a small business operating in the Northwest Territories; and the NWT and Nunavut Chamber of Mines. These written submissions are appended to this report.

Committee thanks everyone who provided submissions on Bill 25.

Public Input and Committee Recommendations

As noted in the introduction, Bill 25 proposes to amend the Workers' Compensation Act to achieve a number of objectives. The key objectives will be addressed in turn, identifying any public input received, and outlining the nature of Committee's deliberations and proposed motions to amend the bill.

Clarify the usage of the terms "impairment" and "disability"

Under the Workers' Compensation Act, temporary compensation is paid based on the effect of a worker's injury on their ability to work, whereas permanent compensation is paid based on a permanent loss of function. The definition of "disability" under the act does not account for the differences between a temporary reduction of function versus a permanent one, leading to confusion for workers and employers, and challenges with interpretation of the act.

Bill 25 proposes to amend the definition of "disability" to mean "the condition of having temporarily reduced physical, functional, mental or psychological abilities" causing a loss of earning capacity for a period of time. It also proposes to introduce a definition for the term "impairment" which is defined as "the condition of having a permanent physical, functional, mental or psychological abnormality or loss" causing a permanent loss of earning capacity.

Committee found the WSCC's definitions to be somewhat counterintuitive, in that the word "impairment" is commonly viewed as being a temporary condition, such as in the case of alcohol impairment, while "disability" is commonly viewed as a lifelong condition. Nonetheless, committee was satisfied not to recommend a change to these proposed definitions, because they are used consistently throughout the act and do help to simplify the meaning of provisions in the act by deleting terms such as "permanent disability," as amended by clause 2(5).

Add detail respecting who is considered an "employer" within the scope of the act

It is important that the Workers' Compensation Act contain a clear definition as to who is considered an employer under the act, as this determines an employer's eligibility and obligations under the act and, hence, an employee's coverage. Clause 4 of Bill 25 amends section 8 of the act by providing a list of exemptions setting out who is not considered an employer for the purposes of the act, including: employers whose chief place of business is in another jurisdiction; employers who do not employ NWT residents; employers carrying out business in the NWT for fewer than ten days per year and; employers having workers' compensation coverage in another jurisdiction.

Committee received a submission from Thomas ADR raising a concern that the proposed amendment would expand the commission's jurisdiction to include sole proprietors. The proprietor's concern was heightened by a statement on the WSCC's website which reads: "If you operate a business in the Northwest Territories and/or Nunavut for more than 10 days within a calendar year, you must register with the WSCC."

Committee's Law Clerk advised that clause 4 of Bill 25 was not intended to include sole proprietors. Nonetheless, committee, exercising an abundance of caution, also wrote to the Minister to ensure government's interpretation was consistent with that of Committee's Law Clerk and to advise the Minister of the concern raised about the statement on the WSCC's website.

The Minister replied, confirming the understanding of committee's law clerk, but also noting that the concern raised about the website is valid and advising that the WSCC would be amending this information to provide clarification on the requirements for employer registration.

Remove the requirement for a primary healthcare provider

With respect to the development of a treatment plan for an injured or ill worker, subsection 33(2) of the act requires the worker to have a primary healthcare provider to take responsibility for diagnosing the worker's condition and developing a treatment plan. Bill 25 proposes to repeal this requirement, out of a recognition that the realities of territorial medical services are such that many patients do not have a primary healthcare physician.

The submission received from the NWT and Nunavut Chamber of Mines supports this proposal, noting that "this requirement was longstanding issue for workers as often it is difficult in the north to see the same doctor on a consistent basis, let alone have a 'primary healthcare provider.' This amendment will make life easier for injured workers to have their claims adjudicated."

Committee agrees that this requirement is unduly onerous and may be difficult for an injured worker in the Northwest Territories to meet, and therefore supports its removal from the act.

Add unemployment benefits as a category of remuneration

Section 57 of the act sets out what must be included when determining the amount of a worker's remuneration which, in turn, forms the basis for assessing the amount of compensation an injured or ill worker may receive. Clause 30 proposes to amend this provision in the act to include employment insurance benefits in the calculation of a worker's remuneration. Committee was advised that, by excluding employment insurance benefits in determining the amount of a worker's remuneration, the Northwest Territories Human Rights Commission found this provision to be discriminatory, particularly for seasonal workers whose social conditions require intermittent work. This decision was later affirmed by the Northwest Territories Court of Appeal, which prompted this proposed amendment.

Committee notes the submission from the NWT and Nunavut Chamber of Mines indicating that this is a potentially controversial proposal because it will result in "more compensation for workers, but higher costs paid by employers." Nonetheless, committee acknowledges the findings of the Northwest Territories Human Right Commission and Court of Appeal and has no concerns with this proposal.

Authorize the provision of workers' records by healthcare provider to WSCC (Clause 14)

Section 25 of the act requires a healthcare provider to submit a report to the WSCC, within three days after treatment, providing the information required by the WSCC. Clause 14 of Bill 25 amends section 25 of the act by adding a new subsection 25(1.1) requiring any healthcare provider who examines or treats worker under the act to "submit records to the commission in relation to medical aid received by the worker sufficient to enable the commission to comply with its obligations under subsection 34(3)" of the act.

In her submission to the committee, the Information and Privacy Commissioner pointed out that "this would require healthcare providers to make a worker's actual treatment records available to the commission, as opposed to providing reports about treatment, resulting in the commission possessing more, and more detailed, healthcare information of individual workers."

Committee observed that this amendment does not include any requirements relating to consent by the worker whose health records are being shared.

Committee also noted that, while section 161 of the Workers' Compensation Act imposes a duty of confidentiality on the WSCC, section 162 of the act provides that "[t]he provisions of [the Workers' Compensation] Act respecting the provision of information by or to the commission have effect notwithstanding the Access to Information and Protection of Privacy (ATIPP) Act and the Health Information Act." This makes the Workers' Compensation Act paramount over ATIPP and the Health Information Act, rendering the protections provided by those statutes subordinate to the requirements of the Workers' Compensation Act.

Committee shares the IPC's concerns, particularly in light of this paramountcy provision. Furthermore, committee does not accept the WSCC's position that the scope of the amendment is not overly broad and that it would not jeopardize the confidentiality of claimants' personal health records. Some committee members also sit on the Standing Committee on Government Operations, which meets annually with the IPC. From these meetings, Members are aware that any time a record is handled or transmitted there is an increased likelihood of privacy breaches. Committee is also concerned that the impact of this provision, in concert with the proposal to allow the WSCC to share information with other agencies under clause 33, could further broaden the potential for privacy breaches.

Committee determined that it does not support the inclusion of clause 14 in the bill.

Authorize information sharing and disclosure for the purpose of improving administration of the act (Clause 33)

Section 95 of the Workers' Compensation Act authorizes the WSCC to enter into information-sharing agreements with public bodies responsible for workers' safety and compensation in other jurisdictions for the purpose of ensuring regimes are efficiently administered in all jurisdictions and that eligible claimants are dealt with the by appropriate jurisdiction.

Clause 33 of Bill 25 proposes to repeal and replace this with a broader authority allowing the WSCC to enter into agreements with the Government of Canada, a government of a province or territory of Canada, an Indigenous government, or with a ministry, board, commission, or agency of such a government, for the purpose of ensuring the proper administration of this act and any other legislation administered by the commission. Clause 33 further provides that the other government, ministry, board, commission, or agency may be permitted to access information obtained by the WSCC under this act and vice versa.

As previously noted, committee was concerned about the impact of this provision, especially given the proposal under clause 14 requiring healthcare providers to share actual medical records with the WSCC. Committee also notes the concern raised by the NWT and Nunavut Chamber of Mines indicating that "in the past such sharing had to be justified using access to information legislation."

Nunavut was also concerned about this clause, especially given the fact that, unlike the Northwest Territories, they do not have any legislation providing protections for health information. Nunavut's Standing Committee on Legislation therefore asked the Standing Committee on Economic Development and Environment to move a motion to amend Bill 25 to prevent other governments or outside agencies from having direct access to the WSCC's databases.

Committee agreed to move this motion.

Reduce the time period for filing a review of a Commission decision to the Review Committee or for filing a request for an appeal to the Appeals Tribunal (Clause 34)

Committee considered two sections of the act that Bill 25 proposes to amend to reduce the time for a worker to file an appeal. Section 115 of the Workers' Compensation Act provides that a "request for a review of a decision of the Commission must be made within three years after the day of the decision, unless the Review Committee considers that there is a justifiable reason for the delay and allows an extension." Subsection 128(2) provides that "[n]o appeal may be taken to the Appeals Tribunal more than three years after the day of the Review Committee's decision, unless the Appeals Tribunal considers that there is a justifiable reason for the delay and allows an extension." Clause 34 of Bill 25 proposes to amend each of these provisions to reduce the window for an appeal from three years to two years.

The WSCC's rationale for this amendment is that two years is the standard civil limitation period under section 2 of the Limitation of Actions Act and that this amendment will help to reduce the overall liability resulting from decision reversals. Even while recognizing that the review committee and Appeals Tribunal have the authority to grant extensions for justifiable delays, committee is not persuaded by this rationale.

Based on numbers provided by the commission for the period 2016 to 2019, had the limitation been two years rather than three, the number of reviews before the review committee that would have been denied doubled from 5 to 10 reviews, and the number of appeals before the Appeal Tribunal that would have been denied doubled from 2 to 4 appeals. In committee's view, while this clearly works to the advantage of the WSCC by minimizing the impact of appeals on the Workers' Protection Fund, it does not evidence any advantage for workers.

Committee holds the view that, in the Northwest Territories, where literacy rates are low, those in smaller communities may have difficulty accessing the supports necessary to launch a review or appeal. As well, a significant component of the population is impacted by social problems and the legacy of residential schools. In this context, it is even more important that careful consideration be given to reducing limitations on the time available to people to exercise their rights.

Committee determined that it does not support the inclusion of Clause 34 in the bill.

Enable an inspector to inspect healthcare providers' records to verify services received (Clause 35)

Lastly, clause 35 of Bill 25 proposes to amend section 134(2) of the Workers' Compensation Act to enable the commission to enter any healthcare facility to inspect and audit any records, with the intent of verifying that claimants have received services related to their claims.

Committee understands that the purpose of this amendment is to enable the WSCC to undertake site audits to obtain a greater degree of information about the compliance of those providing medical services as compared with the claims made by workers about services obtained. Committee asked for evidence about the incidences of medical fraud that have occurred in the past and the costs incurred by the commission due to fraud. The WSCC advised that it does not have any such statistics, pointing out that having this information would be useful for compliance and for quality assurance purposes.

Despite the absence of evidence, committee recognizes that the potential exists for medical fraud to take place, which is a drain on resources for those who legitimately need help. Therefore, committee is sympathetic to the desire of the WSCC to detect and prevent fraud, thereby protecting the Workers' Protection Fund. However, committee was also deeply concerned that this amendment, as written in the bill, provides the WSCC with a very broad authority, perhaps broader than is needed, to access actual patient medical records which may contain highly personal details.

Committee was aware that there are provisions in the Health Information Act allowing patients to prevent access to their medical records without their consent and investigated whether this power could be invoked by a patient to limit the authority proposed to be granted to the WSCC under clause 35. Committee learned that paragraph 22(2)(b)(i) of the Health Information Act states that "[a] condition placed by an individual on his or her consent to the collection, use or disclosure of personal health information...is not effective to the extent that it purports to limit collection, use or disclosure that is required by this or another Act." Therefore, an individual cannot use their right to withhold consent to the disclosure of their personal medical records as a means for limiting the disclosure of their personal health information to the WSCC.

Committee determined that it does not support clause 35 as drafted in the bill. Committee notes that in several of the other bills it is reviewing right now, the right of inspection is constrained by the requirement to obtain a warrant in many instances. Given that fraud is a criminal matter, committee felt that, if fraud is suspected, then the WSCC should use the tools available under criminal law, including the ability to secure a warrant for medical records in instances where there is just cause to do so.

Committee discussed this matter with the WSCC, in an effort to come to some agreement about an appropriate motion to amend clause 35. The WSCC explained that its need for this power under the act is solely to enable it to carry out an audit function relating to accounting and transactional records, and that it has no need for access to patients' personal medical records. Committee and the Minister agreed to a motion that would place constraints on the records that may be accessed by an inspector under this section to scheduled appointments for treatments and services and accounting records related to those appointments.

It was further determined, as a result of these discussions, that the motion should specify the difference between audits for the purposes of detecting fraud, and the audits carried out by the WSCC in fulfilling its responsibility to inspect workplaces to assure that an employer, such as a health facility, is providing a safe workplace meeting occupational health and safety standards.

Committee is pleased that agreement could be reached on this additional amendment to clause 35 and feels that its work with the Minister and the WSCC in this instance is an excellent example of how collaboration between Cabinet and Standing Committees can result in better legislation, to the benefit of all.

Clause-by-Clause Review of the Bill

The clause-by-clause review of Bill 25 was held on August 9, 2019. Appendix 1 sets out the amendments that that committee made to Bill 25.

Conclusion

During the clause-by-clause review of Bill 25, Minister Moses noted his need to share the substance of the committee's deliberations with his counterpart in Nunavut. Committee wishes to assure the Minister and this House that all of the amendments committee made to Bill 25 were done with the full knowledge of Nunavut's Standing Committee on Legislation. Committee understands that Nunavut will be concluding its review of its Bill 8 when the Nunavut Legislative Assembly reconvenes in October.

Committee again thanks everyone involved in the review of Bill 25. This concludes committee's review.