Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Changes for B.C.’s worker’s compensation system

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

In 2002, the provincial government amended the Workers’ Compensation Act to make things more difficult for injured workers to be compensated for their workplace injuries.

Earlier this year, B.C.’s Workers Compensation Act was amended.

Significantly, the legislation now acknowledges the Workers’ Compensation Appeal Tribunal (WCAT)’s power to interpret the Canadian Charter of Rights and Freedoms.

Challenging the WCB

B.C. WCB (also called WorksafeBC) decisions frequently ignore medical evidence and lack a rationale.

A recent review of B.C.’s WCB system stated:

At its extreme, it is a toxic decision-making culture if a claim owner … does not seek/consider/weigh evidence of individual circumstances and then say “if you don’t like it, appeal”. At its barest, the first level decision maker does not apply, or seek to apply, the “merits and justice” of the case. …

Appeals require time and resources that injured workers often do not have and should

not be required to have in order to get compensation. For many stakeholders the issue

becomes – how much justice can you afford? Given the rigors of an appeal process, many

workers, and employers, live unhappily with “average justice”, which in their particular cases,

does not feel like justice at all.

A case manager may make numerous decisions, each of which must be appealed individually, with different review, appeal, reconsideration and judicial review deadlines. Soon, the result is a web of decisions, reviews, appeals and reconsiderations. It is enough to weaken those of the strongest fortitude.

Recently, in Paleos v. Workers’ Compensation Appeal Tribunal, the British Columbia Supreme Court observed:

The process is a lengthy, complex and inefficient one, which is striking when considered in contrast to the lofty goal of compensating injured workers fairly in a timely and efficient manner, seemingly established by the Act…

In 2016, in Shamji v. Workers’ Compensation Appeal Tribunal, the court stated:

While these separate inquiries may be logical, the fact remain that, in combination, the overall scheme is unwieldy, inefficient, and cumbersome. This is particularly so when one considers that the Act is intended to serve injured workers. …

There is much discussion and concern in the current case law about access to justice, judicial efficiency, proportionality, and like issues…. These important objects should apply with equal force to administrative bodies. Accordingly, they apply to the Act and to the decision-making process under the Act. Those decision-making processes …appear to do little to advance these various objects.

In the words of the B.C. Court of Appeal:

The internal appeal and review provisions of the Workers Compensation Act are convoluted, and in some respects bizarre.

Other cases have referred to the process as “long and convoluted,” “tortured” and a “legal playground.”

Many injured workers are unable to navigate this convoluted system without a lawyer. The WCB does not compensate injured workers for legal fees.

One key problem is that the WCB will not compensate for it’s own poor handling of claims.

So, after years of fighting, even if an injured worker receives the compensation he or she was originally entitled to, there is no compensation for the trauma involved in battling the WCB. There is no compensation for being left in poverty in the meantime.

Another problem is that in recent years, the WCB does not generally pay interest. So, the Board has an economic incentive to delay benefits.

The Ultimate Law

In recent years, challenging the WCB under the Canadian Charter of Rights and Freedoms was an almost impossible feat.

The Board’s Review Division apparently had the power to interpret the Charter. However, it rarely if ever did so meaningfully. Also, a challenge to the Review Division is the first step in the appeal process. At this early stage, Charter violations may not be yet apparent.

By the time the worker got to WCAT, the violation may be apparent, but based on the previous 245.1(q) of the legislation, WCAT would not hear Charter issues.

If the injured worker attempted to raise Charter issues for the first time in court, the court would very likely refuse to hear it.

This is what happened in Stein v British Columbia (Workers’ Compensation Appeal Tribunal) and Denton v. British Columbia (Workers’ Compensation Appeal Tribunal).

This all means that in recent years, the WCB was essentially insulated from Charter challenges.

It was only a matter of time before someone challenged the previous s. 245.1(q) as being unconstitutional.

Former S. 245.1 Repealed

Scrutinizing the WCB under the Charter creates the potential that problematic policies may be declared of no force and effect.

There is also the potential that those who have suffered may seek compensation for the harm the WCB has caused them, through an award of damages under the Charter.

We can only hope that WCAT will meaningfully grapple with these challenges, and truly scrutinize the WCB. It is time to end the madness entailed in B.C.’s worker compensation system.

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About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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