On November 6^th, 2020, eighteen months after the review commenced in May 2019, the Ministry of Labour, Training and Skills Development (‘MOLTSD’), posted the Final Report on its website.  The Report contains twenty-five (25) recommendations which stemmed from a review of the Workplace Safety and Insurance Board (‘WSIB’). The aim of these recommendations is to assist the WSIB in managing new transitions while maintaining financial sustainability and ultimately providing better service to workers and employers in Ontario.

The review, led by special advisors Linda Regner Dykeman and Sean Speer, was conducted to provide the government with insights regarding the Board’s operations and to assess how it compares to industry best practices, focusing specifically on the following:

• Financial oversight: the sustainability of the WSIB insurance fund and the controls over it;
• Administration: the effectiveness of the current governance model and leadership structure;
• Efficiency: the effectiveness and cost efficiency of the WSIB’s operations, including comparisons to other jurisdictions and private sector insurers.

The review was also aimed at supporting the WSIB in managing significant transitions including (but not limited to):

• The elimination of its unfunded liability (‘UFL’);
• The launch of a new Rate Framework premium rate-setting program; and
• Plans to implement a core services modernization initiative.

The Final Report’s recommendations cover a variety of subject matters including funding, operations, prevention, representation, and governance. The goal of modernizing the WSIB’s practices and procedures appears to be at the forefront, as the report states that a “top priority for the WSIB must be to modernize” in order to replace “paper processing, telephone interactions, and faxing with easy to use online services.” 

Summary of the 25 Recommendations outlined in the Final Report:

1. The government should adopt a regulation that prescribes a sufficiency ratio corridor of 115% and 125% for the WSIB for the five-year period between 2020 and 2025.
2. The regulation should also establish the parameters for surplus distribution including prescribing the WSIB to consider surplus distribution when the insurance fund exceeds 115% and require it distributes surpluses if the sufficiency ratio hits or exceeds 125%.
3. The government should amend the Workplace Safety and Insurance Act to clarify that any legal or policy changes that impose costs on the WSIB should come into effect in the year in which the WSIB can account for these costs in its rate-setting process.
4. The WSIB should develop a predictive modelling capacity within the organization as part of its effort to improve its pricing and rate-setting processes.
5. As part of the transition to a new rate framework, the WSIB should establish the position of Industry Class Manager with whom employers, industry associations and unions can engage about their issues and circumstances related to specific industry classes.
6. The WSIB should move to an exclusionary model for coverage on a go-forward basis for new employers and industries. This would not affect currently non-mandatory covered industries, but it would apply to any new firms or industries operating in the province.
7. The WSIB and the government should extend mandatory coverage to developmental support workers and those working in residential care facilities.
8. The WSIB and the government should consider consolidating all Schedule 2 employers in the collective liability framework. Moving in this direction would require a transition plan for industry classes, premium rates and Schedule 2 employers who may have ongoing claims. It would also involve consultations on the necessary legislative and regulatory changes as well as the appropriate timeframe for implementation.
9. The WSIB should modernize the claims process by expanding digital submission of documents and enabling individuals to register online in order to monitor the status of their files through a secure personal portal as soon as possible.
10. The WSIB should move to a self-service model for no-lost-time claims in particular and simple claims in general using a system of online claims and fast-tracked adjudication.
11. The WSIB should set separate targets for processing timelines for no-lost-time claims and lost-time claims.
12. The WSIB should continue to adjust and refine its process for claims adjudication to ensure that claims are being managed by the right people at the right time.
13. The WSIB and the government should consider consolidating the WSIB multiple layers of appeal into a single appeals function within the WSIB before appeals move to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). Moving in this direction would require consideration of the format and design of the new appeals function within the WSIB, timelines for appeals decisions, human resource issues and possible incremental resources to the WSIAT to address any resulting increases in its appeals caseload.
14. The Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal should establish a new Quality Table to identify and anticipate trends through data analytics and actual case outputs in order to better inform adjudication guidelines and decision-making.
15. The MOLTSD should work with the Attorney General to ensure that legal representatives (including paralegals) participating in the occupational health and safety system are meeting a high ethical standard and properly serving their clients.
16. The WSIB should maintain a statistically relevant number of audits related to claim suppression through the implementation of the new Rate Framework.
17. The MOLTSD should increase budget funding for the Office of the Worker Adviser and the Office of the Employer Adviser to better serve workers and employers.
18. The government should amend the Labour Relations Act to clarify that labour unions must provide representation on behalf of their members in the occupational health and safety system including the WSIB.
19. The Office of the Chief Prevention Officer should work with the WSIB and the MOLTSD to coordinate better data collection and analysis — including developing a set of future-oriented indicators to better anticipate workplace trends.
20. The government should change its funding model for prevention-related programming by providing dedicated funding to the health and safety associations for specialized training and services and launching a competitive funding pool for more general health and safety services and training.
21. The government should enter into three to five-year transfer agreements with the Health and Safety Associations.
22. If the government changes the funding model for prevention-related programming, it should consider increasing the overall funding available for these activities.
23. The WSIB Board of Directors should regularly prepare and provide a list of required board competencies to the minister to help inform appointment decisions.
24. Appointments to the WSIB Board of Directors should have staggered expiration dates to ensure that several directors’ terms do not expire at the same time.
25. The WSIB and the government should work with an independent adviser (such as Infrastructure Ontario) to conduct a review of the organization’s real property portfolio, including how the WSIB manages it, in order to identify possible efficiencies.

While the Final Report explores several potential areas for internal improvement and efficiency, some of the recommendations would represent significant changes to the current model. Moving towards an exclusionary model in recommendation #6 (where employers would be subject to mandatory coverage unless deliberately excluded), for example, would represent a departure from a framework that has been in place for more than a century (although it should be noted that the review does not recommend changes to the treatment of currently non-mandatory covered industries). Similarly, recommendation #8, which speaks to consolidating Schedule 1 and 2 employers into the collective liability framework, would represent a significant change to 100 years of precedent. In addition, many recommendations would likely require significant legislative changes, including amendments to the Workplace Safety and Insurance Act (‘WSIA’) and the Labour Relations Act.

A further detailed analysis of each recommendation including the underlying rationale and implementation consideration can be found in the Final Report.

In its January 2020 WSIB Policy Agenda, the WSIB recognized the Operational Review and noted that it would review and analyze the recommendations, welcoming any resulting changes. 

If you have any questions about the WSIB Final Report, please do not hesitate to contact a Mathews Dinsdale lawyer.