In A Flash

Construction Advisor – December 2017

Construction Advisor: The Voice of Construction Labour Relations in Canada

December 14, 2017

Articles:
1. Ontario to Extend WSIB Benefits for Work-Related Mental Stress
2. College of Trades: 2017 Developments
3. Bill 148: Implementation Dates
4. Mathews Dinsdale: Canada’s 2018 Law Firm of Year in Workers’ Compensation Law
5. Construction Advisor: Next Edition

Ontario to Extend WSIB Benefits for Work-Related Mental Stress

Author: Julie Weller, Associate
The realm of Workers’ Compensation has not escaped the flood of legislative changes that the Ontario government has introduced to Labour & Employment Law in 2017.
In addition to all of the other changes you’ll have to adjust to, some of which are addressed in the remainder of this advisor, you should be aware that as of January 1, 2018, workers will be able to seek WSIB benefits for Chronic Mental Stress (“CMS”).
What is CMS?
The WSIB has defined CMS as any diagnosable mental disorder that has been predominantly caused by a substantial work-related stressor or series of stressors.
What does this mean?
This means that a worker may be entitled to receive WSIB benefits if an appropriately regulated health professional has diagnosed him/her with a disorder from the DSM and the primary or main cause of the disorder is an identifiable event(s) arising out of and in the course of employment.
The work-related stressor must be excessive in intensity and/or duration compared with normal pressures and tensions experienced by people working in similar circumstances.
What changed?
Prior to the introduction of CMS, a worker could only receive WSIB benefits for mental stress if s/he experienced work-related traumatic mental stress.
Are decisions related to managerial functions considered stressors?
No. The Workplace Safety and Insurance Act explicitly states that workers are not entitled to benefits for mental stress caused by decisions or actions of the worker’s employment.
This includes decisions to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.
So when should I fill out a Form 7?
The same triggers that apply for any workplace injury or condition apply to a claim for CMS.
Consider completing a Form 7 when the following triggers have been met:

  1. a worker indicates that s/he has sought medical attention and/or
    • the worker is absent from work,
    • earns less than regular pay for regular work,
    • requires modified work at less than regular pay, or
    • requires modified work at regular pay for more than seven calendar days following the date of the injury; and
  2. the worker relates the condition or symptoms to the workplace.

It is important to remember that while the employer will be given an opportunity to provide relevant information to the WSIB, it is the WSIB adjudicator’s role to determine work-relatedness and to ultimately decide whether the worker is entitled to benefits.
Are there important dates to be aware of?
As mentioned, the WSIB may accept a worker’s claim as of January 1, 2018. However, the WSIB is now creating transitional rules. These rules may allow workers to bring claims that arose after April 29, 2014.
How can I prepare my workforce for this?
Take a proactive approach to worker mental health by implementing policies that will prevent workplace harassment and bullying. If harassment/bullying occurs, your policies should clearly identify how to immediately address and resolve such issues.
Provide resources and support systems for workers who may be developing mental stress at work in order to prevent conditions from becoming chronic and triggering WSIB entitlement.

College of Trades: 2017 Developments

Author:  Eric Schafer, Associate
In March of 2017, the Ministry of Labour (“MOL”) published a draft regulation on administrative penalties and sought stakeholder feedback on the draft. This regulation specifies the amounts of penalties for individuals and employers. The regulation, which became effective on June 6, 2017, provides for very significant fines, as employers that are repeat offenders can be fined up to $2,000 per day for each employee that is found to be practicing a compulsory trade without a Certificate of Qualification. The maximum amount of a penalty for a notice of contravention is capped at $10,000.
In May 2017, as directed by the Ontario College of Trades and Apprenticeship (“OCTAA”), the College of Trades published its Compliance and Enforcement Policy. This Policy outlines factors that an inspector must consider when determining whether to take enforcement action under the Regulation. One of the factors to consider is whether the employer’s actions result in “risk and harm.”
The definition of “risk and harm” adopted by the OCTAA is very broad and considers the likelihood of harm occurring to members of the public, the individual performing the work, and other workers. The concept includes not only “direct harm,” such as physical harm or financial loss, but extends to “indirect harm” to things such as “confidence in the trades” and “the environment”.
The Policy also provides inspectors with the discretion to select from among a variety of enforcement tools. These tools range from education and warnings to prosecution.
It is important to note that the Policy has identified the underground economy as an area on which the College will focus.
As of June 2017, employers can apply to the OLRB to have a Notice of Contravention reviewed. The OLRB may review the validity of the Notice and/or the penalty levied by the inspector.
There are several resources that employers can reference to learn about the process for appealing a Notice of Contravention.
The OLRB has published an information bulletin that it will use when reviewing the Notices.
The Board has also developed Rules of Procedure. These Rules explain the process for initiating a review of a Notice of Contravention
According to the information bulletin, the OLRB may respond to an application for review by scheduling a mediation, pre-hearing conference, consultation or hearing once the employer application is filed.
In some cases, the OLRB will determine whether to grant the employer appeal based solely on the application and responses. If the matter proceeds to a hearing, the OLRB will start with a clean slate, and the onus will be on the College to prove, on a balance of probabilities, that a contravention of the Ontario College of Trades and Apprenticeship Act, 2009 (the “OCTAA”) has occurred.
Most recently, in July of 2017, the MOL and the College published several proposed regulations.
The MOL Regulation sets out the process that will be used by classification panels to classify or re-classify trades, and to determine which tasks falling within a trade’s Scope of Practice should be restricted to that trade.  The College’s proposed regulation sets out the process for the College’s referral of trade classification review requests to the Classification Roster (the “College Regulation”).
In other words, the College Regulation describes how requests will come before a review panel and the MOL Regulation specifies how a review panel will make its decision.
Under the College Regulation, a Trade Board can also request that its trade be reclassified as a whole, or that specific practices in its scope of practice be “de-designated” (i.e. no longer be subject to College enforcement).  These regulations have not yet come into effect.

Bill 148: Implementation Dates

Author:  Sydney Kruth, Associate
The Fair Workplaces, Better Jobs Act, 2017, colloquially known as Bill 148, received Royal Assent on November 27, 2017. Bill 148 makes a variety of amendments to the Ontario Employment Standards Act, 2000 (the “ESA”), Labour Relations Act, 1995, and Occupational Health and Safety Act. Significant changes to the ESA, and the date that those changes come into effect, are as follows:
Changes to Pay and Benefit Provisions

  • Minimum Wage: Increase to $14/hr effective January 1, 2018; $15/hr effective January 1, 2019.
  • Vacation Pay: Increase to 6 per cent vacation pay and 3 weeks of vacation time after 5 years of service. Effective January 1, 2018.
  • Public Holidays: Simplified calculation for public holiday pay wherein total wages in pay period to be divided by number of days worked in pay period. Effective January 1, 2018.

Changes to Leave of Absence Provisions

  • New Leaves of Absence: Child Death Leave; Crime-Related Child Disappearance Leave; Domestic or Sexual Violence Leave. Effective January 1, 2018. Critical Illness Leave effective December 3, 2017.
  • Parental Leave: Parental Leave available for 61 weeks (where employee took Pregnancy Leave) or 63 weeks; harmonized with extension to EI parental leave benefits. Effective December 3, 2017.
  • Personal Emergency Leave: First 2 emergency days to be paid (after employee has worked for employer for 1 week). Employer no longer entitled to request medical note in support of leave. Effective January 1, 2018.

Changes to Scheduling Provisions

  • Three Hour Rule: Employees who regularly work more than 3 hours per day but who are given less than 3 hours of work upon reporting to work must be paid 3 hours. Pay to be greater of regular rate or sum of amount employee earned for time worked and regular rate for remainder of time. Effective January 1, 2019.
  • Cancellation of Shift/Employee Not Called In: Employees entitled to 3 hours pay where shift cancelled with less than 48 hours’ notice. On-call employees who are not called in entitled to 3 hours pay. Effective January 1, 2019.
  • Scheduling: Employees have right to refuse request to work/request to be on call where provided with less than 96 hours’ notice of request. Employees to have right to request schedule or location change without reprisal after being employed for 3 months. January 1, 2019.

Other Changes

  • Misclassification of Employees: Employers prohibited from misclassifying employees as “independent contractors”; onus will be on employer to establish that individual is not an employee. Effective November 27, 2017.
  • Equal Pay for Equal Work: Same rate of pay for same work, regardless of employment status (permanent, temporary, seasonal, casual, full-time or part-time). Effective April 1, 2018.

Construction employers are understandably concerned that these amendments amount to additions to entitlements that are already addressed within existing collective agreements.
We have been advised that these concerns are under review by the MOL, and that the applicability of the amendments outlined above to collective agreements in the construction industry will be addressed in regulations to the ESA. These regulations should be forthcoming.

Best Firm in Workers’ Compensation Law

Best Lawyers Recognizes Mathews Dinsdale as Law Firm of the Year in Workers’ Compensation
Mathews Dinsdale was recently recognized by Best Lawyers as 2018 “Law Firm of the Year” in the category of workers’ compensation.

Construction Advisor – Next Edition

Who is the Employer? In this article Jim McKeown will review recent Ontario Labour Board case law to identify when individuals on a jobsite may be considered a contractor’s “employee,” even when not on that contractor’s payroll.
On-Site Drug & Alcohol Testing – As the legalization of recreational marijuana use looms closer, the law surrounding drug and alcohol testing in safety-sensitive industries continues to evolve. In light of the changing legal landscape and the ever-increasing fines for workplace accidents, it is imperative that construction employers develop comprehensive health and safety policies to combat workplace impairment. In our next edition of the Construction Advisor, Ben Contini will discuss the implications that an increase in marijuana accessibility will have on job sites, and will address many of the unique issues presented by this new reality.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact the authors, or any Mathews Dinsdale lawyer.
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