This is an official version.

 

Copyright © 2014: Queen’s Printer,
St. John's, Newfoundland and Labrador, Canada

Important Information
(Includes details about the availability of printed and electronic versions of the Statutes.)

 

Table of Public Statutes

Main Site

How current is this statute?

 
 

Responsible Department

 
 

RSNL1990 CHAPTER W-11

WORKPLACE HEALTH, SAFETY AND
COMPENSATION ACT

Amended:

1991 c43 s22; 1992 c29; 1993 c16; 1994 c12; 1995 c13 s17; 1995 c19; 1996 cR-10.1 s83; 1997 c38; 1998 c19; 1999 c22 s29; 2001 c10; 2001 c22 ss40-44; 2004 c31; 2005 c43; 2006 c5; 2006 c19; 2006 c22 s9;
2008 cE-9.1 s29; 2009 c7; 2012 c46; 2013 c3 s42 (not in force - not included here); 2013 c16 s25

CHAPTER W-11

AN ACT RESPECTING THE HEALTH AND SAFETY OF WORKERS AND THE
COMPENSATION OF WORKERS FOR INJURIES SUFFERED IN THE COURSE OF THEIR
EMPLOYMENT

1998 c19 s1

Analysis


       
1.   Short title

       
2.   Definitions

   
2.01   Human Rights Code

              PART I
THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION

     
2.1   Definition

       
3.   Commission continued

       
4.   Board of directors

       
5.   Duties and powers

       
6.   Chief executive officer

       
7.   Officers and staff

       
8.   Offices and administration

       
9.   Property of commission

     
10.   Financial power

     
11.   Audits of commission and appeal tribunal

     
12.   Annual report

     
13.   Business

     
14.   Action barred

     
15.   Power of directors

     
16.   Inquiries by commission

     
17.   Power re examinations

     
18.   Information confidential

   
18.1   Electronic registry

   
18.2   Time of notification

     
19.   Exclusive jurisdiction

     
20.   Rep. by 2001 c10 s6

              PART I.1
WORKPLACE HEALTH AND SAFETY

   
20.1   Application of Part

   
20.2   Duties of commission

   
20.3   Cooperation between commission and division

   
20.4   Administration costs

   
20.5   Research fund

   
20.6   Regulations

              PART II
APPEALS

   
20.7   Definitions

     
21.   Review division

     
22.   Workers' compensation review commissioner

     
23.   Chief review commissioner

     
24.   Officers and employees

   
24.1   Action barred

     
25.   Expenses

     
26.   Review by review commissioner

   
26.1   Review commissioner bound by policy

     
27.   Rules

     
28.   Application to review commissioner

   
28.1   Application for reconsideration

     
29.   Conflict of interest

     
30.   Report under Transparency and Accountability Act

     
31.   Rep. by 1994 c12 s4

     
32.   Rep. by 1994 c12 s4

     
33.   Rep. by 1994 c12 s4

     
34.   Rep. by 1994 c12 s4

     
35.   Stated case

     
36.   Rules for appeal

     
37.   Notification of appeals, etc.

              PART III
APPLICATION OF ACT

     
38.   Application of Act

     
39.   Employer covered

     
40.   Coverage for particular workers

     
41.   Independent operator

     
42.   Work training programs

              PART IV
COMPENSATION AND RIGHT OF ACTION

     
43.   Compensation payable

   
43.1   Proportionate compensation

     
44.   Compensation instead of action

   
44.1   No compensation

     
45.   Where action allowed

     
46.   Commission decides if action prohibited

     
47.   Length of disability

     
48.   Residency requirement

     
49.   Compensation to non- residents

     
50.   Move outside province

     
51.   Injury outside province

     
52.   No waiver of benefits

     
53.   Notice of accident

     
54.   Failure to give notice

   
54.1   Mitigation of injury

   
54.2   Rep. by 2001 c10 s13

     
55.   Application for compensation

     
56.   Duties of employer

     
57.   Duties of health care provider

     
58.   Medical records

   
58.1   Medical information

     
59.   Claim investigated

     
60.   Proof required

     
61.   Presumption

     
62.   Medical examination required

     
63.   Objection to claim

     
64.   Power to review compensation

     
65.   Compensation where fatal accident

   
65.1   Payment to a remarried spouse

     
66.   Method of payment

     
67.   Compensation may be apportioned

     
68.   Compensation may be withheld

     
69.   Compensation unpaid at death

     
70.   Household to be continued

     
71.   Rep. by 1992 c29 s12

     
72.   Payments to children

     
73.   Compensation for disability

     
74.   Lost earning capacity

   
74.1   Compensation to be reviewed

     
75.   Annuity at age 65

     
76.   Earning capacity reviewed

     
77.   Recurrence

     
78.   Elimination of minimum compensation

     
79.   Rescue work

     
80.   Calculation of earnings

     
81.   Benefits to be considered

   
81.1   No amount in excess of compensation

   
81.2   Additional payments

     
82.   Payment of compensation

     
83.   Compensation not assignable

   
83.1   Overpayment of compensation

              PART V
MEDICAL AID

     
84.   Where medical aid needed

     
85.   Medical aid

     
86.   Re contributions for medical aid

     
87.   First medical treatment

              PART VI
RETURN TO WORK AND REHABILITATION

     
88.   Rehabilitation

     
89.   Duty to co-operate in return to work

   
89.1   Obligation to re-employ

   
89.2   Labour market re-entry assessment and plan

   
89.3   Provision of information

   
89.4   Construction industry

              PART VII
INDUSTRIAL DISEASES

     
90.   Industrial disease

   
90.1   Industrial disease compensation

     
91.   St. Lawrence

     
92.   Medical committees

              PART VIII
INJURY FUND AND ASSESSMENTS

     
93.   Injury fund

     
94.   Classes of industry

     
95.   Subclasses

     
96.   Assessment or rate modification

     
97.   Assessment rated on payroll

     
98.   Manner of assessment

     
99.   Employer to pay assessments

   
100.   When assessment due

   
101.   Information may be required

   
102.   Calculation of payroll

   
103.   No deduction from wages

   
104.   Commission may estimate

   
105.   Credit balance due employer

   
106.   Charges to other classes

   
107.   Cost of medical investigations

   
108.   Where assessment insufficient

   
109.   Arrangement with other provinces

   
110.   Arrangement with self- insurers

   
111.   Where industry temporary

   
112.   Former employers

   
113.   Change of ownership

   
114.   Effect of refusal

   
115.   Accounts within fund

   
116.   Reserves within fund

   
117.   Payment in arrears

   
118.   Where default

 
118.1   Directors’ liability

 
118.2   Amount in default

   
119.   Board may withhold money

   
120.   Assessment where work contracted

   
121.   Mechanics' Lien Act

   
122.   Assessment as lien

              PART IX
REGULATIONS

   
123.   General regulations

   
124.   Regulations re fishers

              PART X
PENALTY

   
125.   Offence

              PART XI
REVIEW

   
126.   Review committee


Short title

        1. This Act may be cited as the Workplace Health, Safety and  Compensation Act.

1998 c19 s2

Back to Top

Definitions

        2. (1) In this Act

             (a)  [Rep. by 1994 c12 s1]

             (b)  "board of directors" means the board of directors appointed under section 4;

          (c.1)  "cohabiting partner" means either of 2 persons who are cohabiting and

                      (i)  have cohabited continuously in a conjugal relationship outside marriage for not less than one year, or

                     (ii)  have entered into a written agreement in respect of their cohabitation, in which they agree on their respective rights and obligations during cohabitation, upon ceasing to cohabit or upon the death of either of them;

             (d)  "commission" means the Workplace Health, Safety and Compensation Commission continued under section 3;

             (e)  "compensation" means compensation paid in accordance with this Act to a worker or his or her dependents in respect of an injury;

             (f)  "dependent" means a member of the family of a worker who is wholly or partly dependent upon his or her earnings at the time of the death of the worker or who, but for the incapacity due to the injury, would have been so dependent;

             (g)  "director" means a director of a corporation;

          (g.1)  "disability" means the loss of earning capacity of a worker as a result of an injury;

             (h)  "earnings" includes a share or portion of proceeds or profits referred to in subparagraph (z)(i);

              (i)  "educational institution" means those institutions so prescribed by the regulations;

              (j)  "employer" means an employer to whom this Act applies and who is engaged in, about or in connection with an industry in the province and includes

                      (i)  a person having in his or her service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in a work in or about an industry within the scope of this Act,

                     (ii)  the principal, contractor and subcontractor referred to in section 120,

                    (iii)  in respect of an industry referred to in subparagraph (i) a receiver, liquidator, executor, administrator and a person appointed by a court or a judge who has authority to carry on an industry,

                    (iv)  a municipality,

                     (v)  the Crown in right of Canada where it may in its capacity of employer submit to the operation of this Act,

                    (vi)  the Crown and a permanent board or commission of the Crown where the province may in its capacity of employer submit itself or a board or commission to the operation of this Act, and

                   (vii)  in respect to the industry of fishing, whaling or sealing, the managing owner or person operating a boat, vessel or ship employed or intended to be employed in the industry;

             (k)  "employment" means and refers to the whole or a part of an establishment, undertaking, work, operation, trade or business within the scope of this Act, and in the case of an industry not as a whole within the scope of this Act includes a department of part of the industry that would if carried on separately be within the scope of this Act;

              (l)  "fishing" means fishing for gain, other than for sport, in tidal waters, and

                      (i)  includes fishing for anadromous fish while in those waters,

                     (ii)  is considered to include work performed in the functioning, while fishing or proceeding to or returning from fishing, of the vessel used for fishing, and

                    (iii)  is considered to include other work incidental to or connected with fishing usually performed by persons engaged in fishing;

           (l.1)  "impairment" means a physical or functional abnormality or loss, including a disfigurement, as a result of an injury;

           (m)  "industrial disease" means a disease prescribed by regulation under section 90 and another disease peculiar to or characteristic of a particular industrial process, trade or occupation;

             (n)  "industry" includes the whole or a part of an industry, operation, undertaking, establishment, work, trade or business that is not excluded by section 38;

             (o)  "injury" means

                      (i)  an injury as a result of a chance event occasioned by a physical or natural cause,

                     (ii)  an injury as a result of a wilful and intentional act, not being the act of the worker,

                    (iii)  disablement,

                    (iv)  industrial disease, or

                     (v)  death as a result of an injury

arising out of and in the course of employment and includes a recurrence of an injury and an aggravation of a pre-existing condition but does not include stress other than stress that is an acute reaction to a sudden and unexpected traumatic event;

             (p)  "injury fund" means the fund referred to in section 93;

             (q)  "invalid" means physically or mentally incapable of earning financial remuneration;

              (r)  "medical aid" means medical, surgical and dental aid, hospital and skilled nursing services and a prothesis or apparatus and the repairing and replacement of them, transportation and other matters and things that the commission may authorize or provide;

             (s)  "member of the family" includes spouse, cohabiting partner, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister and a person who stood in place of a parent to the worker or to whom the worker stood in place of a parent, whether related to him or her by consanguinity or not, and where the worker is the parent or grandparent of an illegitimate child, includes that child and where the worker is an illegitimate child, includes his or her parents and grandparents;

              (t)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (u)  "municipality" includes the City of St. John's, the City of Corner Brook, the City of Mount Pearl, the St. John's Metropolitan Area and a town, community, region and local service district, established or continued under theMunicipalities Act;

             (v)  "net earnings" of a worker means his or her average earnings while employed in the industry in which the worker was injured, less the total of

                      (i)  unemployment insurance contributions for those earnings,

                     (ii)  Canada Pension Plan contributions for those earnings, and

                    (iii)  probable income tax deductions for those earnings based on appropriate tables produced by Revenue Canada ;

         (v.1)  [Rep. by 2001 c10 s1]

         (v.2)  "review division" means the review division established under section 21;

            (w)  "settlement" means a settlement whether or not it was made before or after an action has been started in a court;

             (x)  "spouse" means either of 2 persons who

                      (i)  are married to each other,

                     (ii)  are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or

                    (iii)  have gone through a form of a marriage with each other, in good faith, that is void and are cohabiting or have cohabited with each other within the preceding year;

             (y)  "work training program" means a training program prescribed by the regulations; and

             (z)  "worker" means a worker to whom this Act applies and who is a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes

                      (i)  in respect of the industry of fishing, whaling or sealing, a person who becomes a member of the crew of a boat, vessel or ship under an agreement to prosecute a fishing, whaling or sealing voyage in the capacity of a person receiving a share of the voyage or is described in the Shipping Articles as a person receiving a share of the voyage or agrees to accept in payment for his or her services a share or portion of the proceeds or profits of the venture, with or without other remuneration, or is employed on a boat, vessel or ship provided by the employer,

                     (ii)  a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment,

                    (iii)  a part-time or casual worker, and

                    (iv)  an executive officer, manager or director of an employer.

             (2)  Notwithstanding paragraph (1)(o), stress that may be the result of an employer’s decision or action relating to the employment of a worker including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment does not constitute an injury.

1983 c48 s2; 1984 c40 Sch B; 1985 c31 s1; 1986 c38 s1; 1988 c35 s443(23); 1989 c25 Sch B; 1992 c29 s1; 1994 c12 s1; 1998 c19 s3; 2001 c10 s1; 2001 c22 s40

Back to Top

Human Rights Code

   2.01 (1) A provision of this Act or the regulations, or a decision or policy made under this Act or the regulations, that requires or authorizes a distinction because of age shall apply notwithstanding sections 5, 6 and 9 of the Human Rights Code .

             (2)  Subsection (1) applies, with the necessary changes, to a predecessor to this Act or the regulations or a decision or policy made under that Act or regulation.

             (3)  Subsections (1) and (2) apply notwithstanding that the facts in respect of which the requirement or distinction is made occurred before the day on which this section comes into force.

2006 c22 s9

PART I
THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION

2001 c10 s2

Back to Top

Definition

      2.1 In this Part, "director" means a member of the board of directors appointed under section 4.

2001 c10 s2

Back to Top

Commission continued

        3. The Worker’s Compensation Commission is continued as a corporation under the name of the Workplace Health, Safety and Compensation Commission.

1998 c19 s4

Back to Top

Board of directors

        4. (1) The Lieutenant-Governor in Council shall appoint a board of directors of the commission who shall be responsible for the administration of this Act.

             (2)  The board of directors shall comprise

             (a)  3 persons representative of employers, a minimum of one whom shall be recommended to the Lieutenant-Governor in Council by the Newfoundland and Labrador Employers' Council Inc.;

             (b)  3 persons representative of workers, a minimum of one whom shall be recommended to the Lieutenant-Governor in Council by the Newfoundland and Labrador Federation of Labour;

             (c)  3 persons representative of the general public, one of whom represents injured workers; and

             (d)  one person who shall be appointed as the chairperson.

             (3)  An employee of the department designated by the minister and the chief executive officer of the commission shall be members of the board of directors but shall not vote on a matter.

         (3.1)  Where the term of office of a member of the board of directors expires, he or she continues to be a member until re-appointed or replaced.

             (4)  The terms of office, remuneration, benefits and expenses of the directors shall be determined by the Lieutenant-Governor in Council and the remuneration, benefits and expenses shall be part of the administrative expenses of the commission.

1986 c38 s2; 1987 c41 s24; 1992 c29 s2; 1994 c12 s2; 1998 c19 s5; 2009 c7 s1

Back to Top

Duties and powers

        5. (1) The board of directors shall establish policies and programs consistent with this Act and regulations in relation to

             (a)  compensation benefits to injured workers and dependents;

             (b)  rehabilitation and return to work of injured workers;

             (c)  assessments and investments under this Act; and

             (d)  Part I.1

and the policies shall ensure the intent of this Act and regulations is being applied to provide services to injured workers and dependents and shall promote adequate funding for the services through sound financial management.

             (2)  The board of directors shall

             (a)  consider and approve annual administrative and operating budgets and appoint auditors to audit the books and accounts of the commission, in addition to those audits that may be done under section 11;

             (b)  enact by-laws and regulations for the adoption of a seal and for the conduct of the business and affairs of the commission;

             (c)  establish, maintain and regulate advisory committees and their function and composition; and

             (d)  review this Act and regulations and recommend to the minister those changes that it considers advisable.

             (3)  The board of directors may delegate in writing the powers of the board of directors to a director and the powers may be subject to the limitations, conditions and requirements that may be noted in the delegation.

1986 c38 s2; 1998 c19 s6; 2001 c10 s3

Back to Top

Chief executive officer

        6. The board of directors shall, subject to the prior approval of the Lieutenant-Governor in Council, appoint a chief executive officer of the commission who shall devote the whole of his or her time to the performance of duties under this Act.

1986 c38 s2; 1992 c29 s3

Back to Top

Officers and staff

        7. (1) The board of directors shall appoint as employees of the commission, and prescribe the duties of, those persons that the board of directors considers necessary for carrying out this Act.

             (2)  The board of directors shall designate the classifications of persons appointed under subsection (1) and may pay their salaries out of the injury fund.

             (3)  The board of directors may delegate the powers of administration to those of the employees of the commission that it thinks advisable.

1983 c48 s7; 1986 c38 Sch

Back to Top

Offices and administration

        8. (1) The head offices of the commission shall be in the City of St. John's and the commission may set up offices in other parts of the province.

             (2)  All expenses incurred in the administration of this Act shall be paid out of the injury fund.

1983 c48 s8; 1992 c29 s4

Back to Top

Property of commission

        9. The commission may

             (a)  acquire by purchase, gift or otherwise property;

             (b)  erect the buildings that it considers necessary for its purposes; and

             (c)  sell, lease or deal in another manner with its real property,

but in relation to real property, where an acquisition, sale, lease or dealing has a value greater than the amount prescribed the approval of the Lieutenant-Governor in Council is required.

1983 c48 s9

Back to Top

Financial power

      10. (1) The commission may

             (a)  invest funds arising under this Act and other money under its control in accordance with subsection (3) and sell securities and reinvest the proceeds in accordance with subsection (3) or use the proceeds for other purposes authorized by this Act;

             (b)  place its funds and money on deposit in a chartered bank; and

             (c)  with the approval of the Minister of Finance, borrow, by way of overdraft or otherwise, from a chartered bank sums that, in the opinion of the commission, may be considered expedient for the proper carrying out of this Act.

             (2)  The funds, investments and income of the commission are free from taxation.

             (3)  Funds of the commission may be invested only in investments and loans in which an insurance company governed by the Insurance Companies Act (Canada) may invest its funds under sections 86, 88, 91, 92 and 97 of that Act.

1983 c48 s10; 1986 c38 s3; 1995 c13 s17

Back to Top

Audits of commission and appeal tribunal

      11. (1) The Lieutenant-Governor in Council may appoint an auditor to audit the accounts of the commission and the review division and the remuneration of the auditor shall be paid by the commission or the review division.

             (2)  The auditor general shall audit the accounts of the commission and the review division whenever he or she considers it expedient to do so.

1987 c41 s24; 1994 c12 s3

Back to Top

Annual report

      12. (1) The commission shall before June 1 in a year make a report to the minister of its transactions during the preceding calendar year and the report shall contain those particulars which the Lieutenant-Governor in Council may order.

             (2)  The minister shall lay the report made to him or her under subsection (1) before the House of Assembly within 15 days after it is made if the House of Assembly is then in session and, if not, then within 15 days after the beginning of the next session.

1983 c48 s12; 1992 c29 s5

Back to Top

Business

      13. The board of directors shall sit at the times and conduct its proceedings in a manner that it may consider most convenient for the proper discharge and speedy dispatch of business.

1983 c48 s13; 1986 c38 Sch

Back to Top

Action barred

      14. An action or other proceeding does not lie against the commission or a director, officer or employee of the commission for anything done or omitted to be done in good faith in the course of exercising a power or carrying out a duty under this Act.

2006 c19 s1

Back to Top

Power of directors

      15. (1) The directors have the powers that are conferred on a commissioner under the Public Inquiries Act.

             (2)  The commission may enter into agreements with other persons that are, in the opinion of the board of directors, advisable for carrying out this Act.

1983 c48 s15; 1986 c38 Sch

Back to Top

Inquiries by commission

      16. (1) The board of directors may act upon the report of an employee of the commission, and an inquiry which it considers necessary to make may be made by 1 of the directors or by an employee of the commission or some other person appointed by the board of directors to make the inquiry, and the board of directors may act upon his or her report as to the result of the inquiry.

             (2)  A person appointed under subsection (1) to make an inquiry has for the purposes of the inquiry the powers conferred upon the directors by subsection 15(1).

1983 c48 s16; 1986 c38 Sch

Back to Top

Power re examinations

      17. (1) A director or person authorized by the commission may make the examination or inquiry into a matter that the commission considers necessary for the purpose of this Act.

             (2)  A person acting under subsection (1) may

             (a)  at reasonable times enter a premises;

             (b)  require the production of books, records or other documents applicable to the examination or inquiry and may examine those books, records or documents or remove them for the purpose of making copies of them; and

             (c)  require and take affidavits, affirmations or declarations as to a matter of the examination or inquiry and administer oaths and affirmations and take declarations and certify that they have been made.

             (3)  Where a director or other person removes books, records or other documents under paragraph (2)(b), he or she shall give to the person from whom those items were taken a receipt for them and shall immediately make copies of them and return the originals to the person who was given the receipt.

1983 c48 s17; 1986 c38 Sch; 2001 c10 s4

Back to Top

Information confidential

      18. (1) An employee of the commission or a person authorized to make an inquiry under this Act shall not divulge, except in the performance of his or her duties or under the authority of the board of directors, information obtained by him or her or which has come to his or her knowledge in making or in connection with an inspection or inquiry under this Act.

             (2)  Notwithstanding subsection (1), the board of directors may permit the divulging to legal counsel or another authorized representative either of a person seeking compensation or of another interested party of information referred to in subsection (1) or other information contained in the records or files of the commission.

1983 c48 s18; 1986 c38 Sch

Back to Top

Electronic registry

   18.1 (1) The commission shall establish an electronically accessible system to provide information respecting employers, and may determine the information respecting those employers, that may be provided.

             (2)  Notwithstanding section 18,

             (a)  legal counsel;

             (b)  an employer; and

             (c)  a member of the public,

may, as the commission may permit, request from the commission via electronic means information respecting the account status of an employer.

             (3)  The commission may charge a fee for the provision of information requested under subsection (2) and may establish different fees or forgo fees for different categories of persons requesting information under that subsection.

             (4)  A request under subsection (2) shall be accompanied by the information required by the commission to identify the transaction concerning which the request is being made.

             (5)  The commission shall, within one business day after receiving a request under subsection (2), confirm that receipt by issuing an electronic notice of confirmation to the person who made the request.

             (6)  Where a notice of confirmation has been issued with respect to a legal counsel request, the commission shall provide the requested account status not more than 21 days after the issuance of the notice of confirmation.

             (7)  Where the commission does not provide the account status in response to a legal counsel request within 21 days after the issuance of the notice of confirmation of that request and a transaction for which that request was made is completed

             (a)  after that 21 day period; but

             (b)  before the commission provides the account status,

assets included in that transaction shall be considered to be free and clear of a lien imposed under this Act and a security interest included in that transaction shall have priority over a lien imposed under this Act.

             (8)  An account status given by the commission in response to a legal counsel request under this section shall be valid only for 45 days after that account status has been provided to the person who made that legal counsel request.

             (9)  In this section and section 18.2

             (a)  "legal counsel request" means a request made by a legal counsel under paragraph (2)(a);

             (b)  "notice of confirmation" means a notice of confirmation issued under subsection (5); and

             (c)  "security interest” means an interest in property that secures payment or performance of an obligation.

2005 c43 s1

Back to Top

Time of notification

   18.2 Electronic information given by the commission in response to a legal counsel request under section 18.1 shall be considered to be provided to the person who made that legal counsel request when it enters an information system outside the control of the commission.

2005 c43 s1

Back to Top

Exclusive jurisdiction

      19. (1) The commission has exclusive jurisdiction to examine, hear and determine matters and questions arising under this Act and a matter or thing in respect of which a power, authority or distinction is conferred upon the commission, and the commission has exclusive jurisdiction to determine

             (a)  whether an injury has arisen out of and in the course of an employment within the scope of this Act;

             (b)  the existence and degree of impairment because of an injury;

             (c)  the permanence of impairment because of an injury;

             (d)  the degree of diminution of earning capacity because of an injury;

             (e)  the amount of average earnings;

             (f)  the existence of the relationship of a member of the family of a worker as defined by this Act;

             (g)  the existence of dependency;

             (h)  the class to which an industry or a part, branch or department of the industry should be assigned;

              (i)  whether a worker in an industry is within the scope of this Act and entitled to compensation under the Act;

              (j)  whether or not, for the purpose of this Act, a person is a worker, subcontractor, independent operator or an employer;

             (k)  whether a particular disease is peculiar to, or characteristic of, a particular industrial process, trade or occupation to which this Act applies;

              (l)  whether a worker is co-operating in reaching medical recovery, in returning to work and in all aspects of the labour market re-entry assessment and plan provided to the worker;

           (m)  whether an employer has fulfilled the obligation to return a worker to work or re-employ a worker; and

             (n)  whether a labour market re-entry plan shall be prepared for a worker.

             (2)  Subject to Part II, an action or decision of the commission is final and conclusive and is not open to question or review in a court of law and proceedings by or before the commission shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise into a court of law.

             (3)  Nothing in subsection (1) or (2) shall be construed to prevent the commission from reconsidering a matter which has been dealt with by it or from rescinding, altering or amending a decision or order previously made by it.

             (4)  The decisions of the commission shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent.

1983 c48 s19; 1986 c38 s4; 1992 c29 s6; 2001 c10 s5

Back to Top

Rep. by 2001 c10 s6

      20. [Rep. by 2001 c10 s6]

2001 c10 s6

PART I.1
WORKPLACE HEALTH AND SAFETY

Back to Top

Application of Part

   20.1 (1) This Part applies to workplaces to which, and to workers and employers to whom, the Occupational Health and Safety Act applies.

             (2)  Notwithstanding section 2, words used in this Part that are defined in the Occupational Health and Safety Act have the meaning given to them by that Act.

1998 c19 s7

Back to Top

Duties of commission

   20.2 In order to promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and diseases the commission shall

             (a)  promote public awareness of workplace health and safety;

             (b)  educate employers, workers and other persons about workplace health and safety;

             (c)  provide services to occupational health and safety committees, worker health and safety representatives and workplace health and safety designates established or appointed under the Occupational Health and Safety Act ;

             (d)  promote and provide funding for workplace health and safety research;

             (e)  develop standards for the certification of persons required to be certified under the Occupational Health and Safety Act and approve training programs for certification;

             (f)  certify persons who meet the standards referred to in paragraph (e);

             (g)  foster commitment to workplace health and safety among employers, workers and other persons; and

             (h)  make recommendations to the department respecting workplace health and safety.

1998 c19 s7; 2009 c7 s2

Back to Top

Cooperation between commission and division

   20.3 The commission shall co-operate with the occupational health and safety division of the department, including the provision of information to the division, where it is necessary to give effect to this Part and the Occupational Health and Safety Act .

1998 c19 s7

Back to Top

Administration costs

   20.4 The commission shall pay from its assessment and revenue income the cost of the occupational health and safety division in the department and the cost of annual grants made by the minister under section 64 of the Occupational Health and Safety Act to a maximum of 5% of its total assessment and investment income in each calendar year.

1998 c19 s7

Back to Top

Research fund

   20.5 (1) The commission shall allocate a maximum of 2% of its total assessment and investment income in each calendar year to establish and maintain a special fund for the purpose of workplace health and safety research.

             (2)  The commission shall administer the fund referred to in subsection (1) and approve expenditures for workplace health and safety research.

1998 c19 s7

Back to Top

Regulations

   20.6 The commission, subject to the approval of the Lieutenant-Governor in Council, may make regulations to give effect to this Part.

1998 c19 s7

PART II
APPEALS

Back to Top

Definitions

   20.7 In this Part

             (a)  "policy" means policy established by the board of directors under subsection 5(1); and

             (b)  "review commissioner" means a review commissioner appointed under section 22 and may include the chief review commissioner.

2001 c10 s7

Back to Top

Review division

      21. There shall be established a review division responsible for the review of decisions of the commission in accordance with this Part.

1994 c12 s4

Back to Top

Workers' compensation review commissioner

      22. (1) The Lieutenant-Governor in Council shall on the recommendation of the minister appoint to the review division a panel of persons to act as review commissioners.

             (2)  A panel appointed under subsection (1) shall not exceed 7 persons, 1 of whom shall be appointed by the Lieutenant-Governor in Council as chief review commissioner.

             (3)  The terms of office, remuneration, benefits and expenses of the review commissioners shall be determined by the Lieutenant-Governor in Council.

             (4)  A review commissioner shall hold office during good behaviour for a term that the Lieutenant-Governor in Council may establish.

1994 c12 s4

Back to Top

Chief review commissioner

      23. The chief review commissioner of the panel appointed under section 22 shall review a matter brought before him or her under subsection 28(1) or shall refer that matter to another review commissioner of the panel.

1994 c12 s4

Back to Top

Officers and employees

      24. (1) There may be employed, in the manner provided by law, those officers, employees and advisors of the review division that are necessary to enable the review division to carry out its functions and the Lieutenant-Governor in Council may fix their terms of service.

             (2)  Notwithstanding subsection (1), those officers and employees employed with the appeal tribunal existing under Part II on June 30, 1994 who are considered by the minister to be necessary for the operations of the review division existing under Part II on July 1, 1994 shall be considered to have been employed in accordance with subsection (1).

             (3)  The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to the officers, employees and advisors employed under subsection (1).

1994 c12 s4

Back to Top

Action barred

   24.1 An action or other proceeding does not lie against the chief review commissioner, the other review commissioners and the officers, employees and advisors of the review division for anything done or omitted to be done in good faith in the course of exercising a power or carrying out a duty under this Act.

2006 c19 s2

Back to Top

Expenses

      25. Expenses incurred in the administration of the review division, including those under section 24, shall be paid out of the Consolidated Revenue Fund and that fund shall be reimbursed by money from the injury fund.

1994 c12 s4

Back to Top

Review by review commissioner

      26. (1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to

             (a)  compensation benefits;

         (a.1)  rehabilitation and return to work services and benefits;

             (b)  an employer's assessment;

             (c)  the assignment of an employer to a particular class or group;

             (d)  an employer's merit or demerit rating; and

             (e)  the obligations of an employer and a worker under Part VI.

             (2)  An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law.

1994 c12 s4; 2001 c10 s8

Back to Top

Review commissioner bound by policy

   26.1 A review commissioner shall be bound by this Act, the regulations and policy.

2001 c10 s9

Back to Top

Rules

      27. (1) The review division may, subject to the approval of the Lieutenant-Governor in Council, in relation to the review of decisions as referred to in section 26, prescribe rules of procedure and evidence and may order the type and nature of information to be provided by a person to a review commissioner before or during a review and that person shall provide the information to the review commissioner.

             (2)  For the purpose of the review of a decision as referred to in section 26, a review commissioner has the powers that are conferred on a commissioner under thePublic Inquiries Act, and a review commissioner is considered to be an "investigating body" for the purpose of the Public Investigations Evidence Act, and there shall be full right to examine and cross-examine witnesses called to bring forward evidence in response and reply, and section 3 of thePublic Inquiries Act shall apply to those witnesses.

1994 c12 s4

Back to Top

Application to review commissioner

      28. (1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission.

         (1.1)  The chief review commissioner may accept an application after the time set in subsection (1) upon review of a written application for an extension of time by the person requesting the review, but no application for review of a decision shall be accepted beyond one year from the date the commission's decision was communicated to the person making the application.

         (1.2)  An application under subsection (1) shall be in writing and shall identify how the decision is contrary to this Act, regulations and policy.

         (1.3)  Where an application does not comply with subsection (1.2) a review commissioner shall refuse to review a matter until the applicant complies with subsection (1.2).

         (1.4)  Where an applicant does not comply with subsection (1.2) within 30 days of receiving notification from the review division of the non-compliance, the decision of the commission shall not be reviewed under this Part.

             (2)  A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1).

             (3)  The commission shall have standing and may be heard and make representations itself or through an agent acting on its behalf on a matter being reviewed by a review commissioner and at further proceedings arising out of that matter.

             (4)  A review commissioner to which a matter has been referred for review shall

             (a)  notify the person seeking the review and the commission of the time and place set for the review; and

             (b)  review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy.

         (4.1)  Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission.

         (4.2)  Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and

             (a)  make a decision which is in accordance with this Act, regulations and policy; or

             (b)  where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy.

         (4.3)  Where a matter is referred to the commission under subsection (4.2), the review commissioner shall not review a new decision except where a new application is made under subsection (1).

             (5)  A person who applies for a review under subsection (1) may appear before the review commissioner on his or her own behalf or be represented by counsel or an agent and may accompany and appear with the counsel or agent before the review commissioner.

             (6)  Where a person other than a person applying for a review under subsection (1), has an interest in a matter before the review commissioner, that person has the right to appear before the review commissioner either personally or to be represented by counsel or an agent and shall, after indicating in writing to the review commissioner an intention to appear, be notified of the time and place of the review of the matter.

             (7)  Where the person applying to the chief review commissioner under subsection (1), or a person referred to in subsection (6), fails to attend, in person or by counsel or agent, unless that failure to attend is due to circumstances beyond the person's control and that person has, by written notice, advised the review commissioner that the person wishes to attend and sets out, in the notice, the circumstances that prevent the attendance, the review commissioner may proceed to examine witnesses and to review and adjudicate on the matter being reviewed.

             (8)  A review commissioner shall communicate his or her decision, with reasons, to the person seeking the review, the commission and a person who appeared or made a submission on the review, within 60 days of the date of the application for review.

1994 c12 s4; 1998 c19 s8; 2001 c10 s10

Back to Top

Application for reconsideration

   28.1 (1) A worker, dependent, employer or the commission may apply, in writing, to the chief review commissioner for a reconsideration of a decision of a review commissioner.

             (2)  An application under subsection (1) shall be made within 30 days of receipt of the decision that is the subject of the reconsideration being given.

             (3)  The chief review commissioner shall review the application and, where he or she determines that reconsideration is appropriate, shall reconsider the decision, or order that the decision be reconsidered by another review commissioner who did not make the decision.

         (3.1)  Where the decision to be reconsidered was made by the chief review commissioner, he or she shall refer the application to a different review commissioner who may in his or her discretion order that the decision be reconsidered, and conduct the reconsideration where one is ordered.

             (4)  A review commissioner shall communicate his or her decision, with reasons, on the application for reconsideration to the person seeking the reconsideration, the commission and a person who appeared or made a submission on the reconsideration

             (a)  within 45 days of the date of the application for reconsideration, where an oral hearing is not held; and

             (b)  within 60 days of the date of the application for reconsideration, where an oral hearing is held.

         (4.1)  Subsections 28(4.1) to (4.3) shall apply to the reconsideration process, with the necessary changes.

             (5)  The chief review commissioner shall notify all the parties to which the request for a reconsideration relates of the request within 10 days of receiving it.

1998 c19 s9; 2001 c10 s11

Back to Top

Conflict of interest

      29. A review commissioner may not review a matter under this Part if he or she has a direct personal interest in that matter or if the chief review commissioner determines there is a conflict of interest.

1994 c12 s4

Back to Top

Report under Transparency and Accountability Act

      30. An annual report, as required by and in accordance with the requirements of the Transparency and Accountability Act , shall be submitted by the review division in accordance with that Act.

2009 c7 s3

Back to Top

Rep. by 1994 c12 s4

      31. [Rep. by 1994 c12 s4]

1994 c12 s4

Back to Top

Rep. by 1994 c12 s4

      32. [Rep. by 1994 c12 s4]

1994 c12 s4

Back to Top

Rep. by 1994 c12 s4

      33. [Rep. by 1994 c12 s4]

1994 c12 s4

Back to Top

Rep. by 1994 c12 s4

      34. [Rep. by 1994 c12 s4]

1994 c12 s4

Back to Top

Stated case

      35. The commission may, of its own motion, or upon the application of a party and upon security being given as the commission directs, state a case in writing for the opinion of the Trial Division upon a question which in the opinion of the commission is a question as to the commission's jurisdiction or a question of law, and a similar reference may also be made at the request of the Lieutenant-Governor in Council, and the Trial Division shall hear and determine the questions arising in a case so stated and remit the matter to the commission with the opinion of the court on the matter.

1983 c48 s23

Back to Top

Rules for appeal

      36. (1) The Judicature Act and the Rules of the Supreme Court, where they can be applied and are consistent with this Act, shall apply to a proceeding with respect to an appeal or stated case under section 35.

             (2)  A notice or other document required to be served on the commission may be served on the chairperson or, in his or her absence, the chief executive officer of the commission.

1987 c41 s24; 1994 c12 s4

Back to Top

Notification of appeals, etc.

      37. The Trial Division has power, with respect to stated cases referred to in section 35, to direct that a person interested, or, where there is a class of persons interested, 1 or more persons as representatives of that class, shall be notified of the hearing and those persons are entitled to be heard.

1983 c48 s25; 1994 c12 s6

PART III
APPLICATION OF ACT

Back to Top

Application of Act

      38. (1) This Act applies to workers and employers engaged in, about or in connection with an industry in the province except those industries, employers or workers that the Lieutenant-Governor in Council may exclude by regulation.

             (2)  In addition to those industries, employers and workers excluded under subsection (1), the commission may by regulation exclude an employer or worker from the scope of this Act, where it is of the opinion that the exclusion is appropriate.

             (3)  Notwithstanding that certain industries, employers or workers are excluded from the scope of this Act, the commission may, on application, order that this Act apply to 1 or more of the industries, employers or workers otherwise excluded.

1983 c48 s26

Back to Top

Employer covered

      39. An employer in an industry may be admitted by the commission as being entitled for himself or herself and his or her dependents to the same compensation as if the employer were a worker.

1983 c48 s27

Back to Top

Coverage for particular workers

      40. (1) The Lieutenant-Governor in Council may by regulations in relation to

             (a)  fishers working in or out of the province, or on or about the waters of the province, or living within the province;

             (b)  commercial buyers or other commercial recipients of fish, or a person engaged within the province in transmitting payments to fishers;

             (c)  volunteer fire brigades or departments located in or serving a municipality and the members of the fire brigades or departments;

             (d)  independent operators in the logging industry;

             (e)  members of the House of Assembly;

             (f)  volunteers engaged in work or measures under the Emergency Services Act ;

             (g)  volunteers providing community ambulance services;

             (h)  volunteers engaged in search and rescue activities as tasked by the Royal Newfoundland Constabulary or the Royal Canadian Mounted Police; and

              (i)  volunteers engaged in auxiliary policing services,

provide that the provisions of this Act may apply and to the extent that the regulations may provide.

             (2)  Where it appears to the commission that this Act or a regulation is inappropriate or unworkable in relation to fishers, the fishing industry or commercial buyers or other commercial recipients of fish, the commission may, by regulation or otherwise, make rules and give decisions that it considers fair and appropriate having regard to the intent that fishers shall where possible receive the benefit of and be subject to this Act.

1983 c48 s28; 1986 c38 s6; 1998 c19 s10; 2008 cE-9.1 s29; 2012 c46 s1

Back to Top

Independent operator

      41. An independent operator, not being an employer or a worker but performing work of a nature that would be within the scope of this Act, may be admitted by the commission as being entitled for himself or herself and his or her dependents to the same compensation as if he or she were a worker within the scope of this Act.

1983 c48 s29

Back to Top

Work training programs

      42. (1) Where a student is enrolled in an educational institution and is participating in a work training program he or she shall, while participating in the work training program, be considered to be a worker employed by the province.

             (2)  Where a student is injured while participating in a work training program and is entitled to compensation the amount payable to him or her shall be based on the current rate paid to a worker engaged in the same or similar work provided that the maximum amount payable does not exceed that set by this Act.

             (3)  The age for admission to a work training program shall be 15 years or over but in exceptional circumstances the commission may, at the request of the Minister of Education, rule a student to be entitled to the benefits of this section.

1983 c48 s30

PART IV
COMPENSATION AND RIGHT OF ACTION

Back to Top

Compensation payable

      43. (1) Compensation under this Act is payable

             (a)  to a worker who suffers personal injury arising out of and in the course of employment, unless the injury is attributable solely to the serious and wilful misconduct of the worker; and

             (b)  to the dependents of a worker who dies as a result of such an injury.

             (2)  The commission shall pay compensation to a worker who is seriously and permanently disabled or impaired as a result of an injury arising out of and in the course of employment notwithstanding that the injury is attributable solely to the serious and wilful misconduct of the worker.

             (3)  The commission shall pay interest on compensation payable for loss of wages to a worker or the worker's dependents where the payment of that compensation is delayed, for more than 30 days, as a result of circumstances that are in the control of the commission.

             (4)  The rate of interest paid under subsection (3) shall be calculated in accordance with the provisions of the Judgment Interest Act .

1983 c48 s31; 1992 c29 s7

Back to Top

Proportionate compensation

   43.1 Notwithstanding paragraph 2(1)(o), where a worker suffers personal injury arising out of and in the course of employment that

             (a)  aggravates, activates or accelerates a condition, disease or disability existing prior to the injury; or

             (b)  is aggravated, activated or accelerated by causes other than the injury,

compensation is payable for the proportion of the loss of earnings or permanent impairment that the commission determines is attributable to the injury.

2001 c10 s12

Back to Top

Compensation instead of action

      44. (1) The right to compensation provided by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or her dependents are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arises in the course of the worker's employment.

             (2)  A worker, his or her personal representative, his or her dependents or the employer of the worker has no right of action in respect of an injury against an employer or against a worker of that employer unless the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer.

             (3)  An action does not lie for the recovery of compensation under this Act and claims for compensation shall be determined by the commission.

1983 c48 s32

Back to Top

No compensation

   44.1 (1) Section 44 shall not apply where the worker is injured or killed

             (a)  while being transported in the course of the worker's employment by a mode of transportation in respect of which public liability insurance is required to be carried; or

             (b)  as a result of an accident involving the use of a motor vehicle by the worker or another person, in the course of the worker's employment.

             (2)  In subsection (1) "motor vehicle" means

             (a)  a motor vehicle

                      (i)  registered under the Highway Traffic Act, or

                     (ii)  authorized under section 12 or 17 of the Highway Traffic Act to be operated on a highway in the province without being registered under that Act,

whether or not it is being operated on a highway; or

             (b)  another motor vehicle while being operated on a highway in the province and

for the purpose of this definition "highway" means a highway as defined in the Highway Traffic Act.

1992 c29 s8; 1994 c12 s7

Back to Top

Where action allowed

      45. (1) Where a worker sustains an injury in the course of his or her employment in circumstances which entitle him or her or his or her dependents to an action

             (a)  against some person other than an employer or worker;

             (b)  against an employer or against a worker of that employer where the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer; or

             (c)  where section 44.1 applies,

the worker or his or her dependents, where they are entitled to compensation, may claim compensation or may bring an action.

             (2)  The worker or his or her dependents shall make an election under subsection (1) within 3 months of the injury and an application for compensation is a valid election for the purpose of this section.

             (3)  Where the worker or his or her dependents elect to bring an action, he or she or they shall immediately serve notice in writing of the election on the commission.

             (4)  Where the commission is satisfied that due to a physical or mental disability a worker is unable to exercise his or her right of election, and undue hardship will result, it may pay the compensation provided by this Act until the worker is able to make an election.

             (5)  Where the worker referred to in subsection (4) elects not to claim compensation, no further compensation shall be paid, but the compensation that has been paid shall be a 1st lien against a sum that may be recovered.

             (6)  Where a person who is required to make an election under this section is under the age of 18 years, his or her parent or guardian may make the election.

             (7)  Where a worker referred to in subsection (1) or the worker's dependents bring an action or settle out of court and less is recovered and collected than the amount of the compensation to which the worker or dependents would be entitled under this Act, the worker or dependents are not entitled to claim compensation under this Act.

             (8)  Where the worker or the worker's dependents apply to the commission claiming compensation under this Act, neither the making of the application nor the payment of compensation under it shall restrict or impair a right of action against the party liable, but in relation to those claims the commission is subrogated to the rights of the worker or his or her dependents and may maintain an action in his or her or their names or in the name of the commission against the person against whom the action lies for the whole or an outstanding part of the claim of the worker or his or her dependents.

             (9)  The commission has exclusive discretion to determine whether it shall take an action, release its claim for an action or compromise the right of action, and its decision is final.

          (10)  Where, in an action under subsection (1), a worker or the worker's dependents receive money as the result of a judgment given by a court of law and the commission is owed money under this section by the worker or his or her dependents, the judge shall order that the money owed be paid to the commission.

          (11)  Where the commission is subrogated to the rights of a worker or the worker's dependents and recovers and collects more than the amount of the compensation to which the worker or dependents would be entitled under this Act, the sum representing the amount of the excess, less costs and administration charges, shall be paid to the worker or dependents.

          (12)  Costs may, notwithstanding that a salaried employee of the commission acts as its solicitor or counsel, be awarded to and collected by the commission in an action taken by the commission under this section.

          (13)  The commission may, in an action brought under subsection (8), also recover amounts paid to or on behalf of a worker or his or her dependents by way of compensation, including amounts paid as medical expenses, rehabilitation expenses and other expenses paid by the commission to or on behalf of the worker or his or her dependents.

1983 c48 s33; 1985 c31 s2; 1992 c29 s9; 1994 c12 s8; 1999 c22 s29; 2009 c7 s4

Back to Top

Commission decides if action prohibited

      46. Where an action in respect of an injury is brought against an employer or a worker by a worker or his or her dependent, the commission has jurisdiction upon the application of a party to the action to adjudicate and determine whether the action is prohibited by this Act.

1983 c48 s34

Back to Top

Length of disability

      47. (1) Where an injury disables a worker for only the day on which the injury occurred, compensation other than medical aid shall not be paid by the commission but where the injury disables the worker for longer than the day on which the injury occurred compensation shall be paid from and including the day following the day of the injury.

             (2)  Where an injury disables a worker either for only the day on which the injury occurred, or for longer than the day on which the injury occurred, the employer shall pay the worker the wages or earnings that the worker would have earned from his or her employer the day on which the injury occurred as if he or she had not been disabled by the injury.

             (3)  Where an injury results in a permanent functional impairment to a worker, he or she is entitled to compensation for the impairment notwithstanding the fact that there is no loss of earnings.

1983 c48 s35; 1992 c29 s10

Back to Top

Residency requirement

      48. Nothing in this Act entitles a person not living in the province to compensation payments with respect to an injury sustained within the province.

1983 c48 s36

Back to Top

Compensation to non- residents

      49. (1) Notwithstanding section 48, where it appears that by the laws of another province, country or jurisdiction a worker or his or her dependents, if living in this province, would be entitled in respect of an injury in that other province, country or jurisdiction to compensation, as distinguished from damages, the commission may order that payments of compensation under this Act may be made to persons living in that province, country or jurisdiction in respect of a worker killed or injured in this province.

             (2)  The commission may order that payments of compensation under this Act may be made to persons living elsewhere in Canada as the result of an injury sustained in this province after December 31, 1983 .

1983 c48 s37

Back to Top

Move outside province

      50. Notwithstanding section 48, a worker or dependent living in this province may after the time of the injury live elsewhere without forfeiting the right to compensation under this Act.

1983 c48 s38

Back to Top

Injury outside province

      51. (1) Notwithstanding section 48, where an employer carries on a business in the province that has a substantial connection with the province and an injury occurs out of the province to a worker who is employed by that employer, the worker or his or her dependents are entitled to compensation in the same manner as if the injury had occurred in the province, unless the worker or his or her dependents are entitled to compensation under the law of the place where the injury occurred.

             (2)  In a case where compensation is payable in respect of an injury occurring out of the province, where the employer has not fully reported to the commission the wages of the worker who sustains the injury, the employer is, except where he or she may be relieved by the commission, liable for the full amount or capitalized value of the compensation and the payment of that amount may be enforced in the same manner as the payment of an assessment may be enforced.

1983 c48 s39

Back to Top

No waiver of benefits

      52. A worker shall not agree with his or her employer to waive benefits to which he or she or his or her dependents are or may become entitled under this Part and an agreement of that nature is void.

1983 c48 s40

Back to Top

Notice of accident

      53. (1) Compensation is not payable to a worker unless

             (a)  he or she, or another person on behalf of the worker, gives notice of the injury to his or her employer immediately after the occurrence of the injury and before he or she has voluntarily left the employment in which he or she was injured; and

             (b)  the claim for compensation is made

                      (i)  within 3 months from the occurrence of the injury,

                     (ii)  in the case of an industrial disease, within 3 months after the worker knew, or ought reasonably to have known, that he or she suffers from the disease, and

                    (iii)  in case of death, within 6 months after the date of death.

             (2)  The Lieutenant-Governor in Council may, by order, extend the limitation period for making a claim for compensation in respect of an injury described in the order, with effect from the date of the order or an earlier or later date that may be set out in the order.

             (3)  The notice given under subsection (1) shall give the name and address of the worker and shall be sufficient if it states in ordinary language the cause of the injury and where the injury occurred.

             (4)  [Rep. by 2009 c7 s5]

1983 c48 s41; 1998 c19 s11; 2009 c7 s5

Back to Top

Failure to give notice

      54. Notwithstanding section 53, failure to give the notice or to make a claim or a defect or inaccuracy in the notice does not bar the right to compensation where, in the opinion of the commission, the failure, defect or inaccuracy was due to circumstances beyond the worker’s control and the employer was not prejudiced by the failure, defect or inaccuracy.

1998 c19 s12

Back to Top

Mitigation of injury

   54.1 (1) A worker shall

             (a)  take all reasonable steps to reduce or eliminate a permanent impairment and loss of earnings resulting from an injury;

             (b)  seek out and co-operate in any medical aid or treatment that, in the opinion of the commission, promotes the worker’s recovery and return to work;

             (c)  take all reasonable steps to provide to the commission full and accurate information on a matter relevant to a claim for compensation; and

             (d)  notify the commission immediately of a change in circumstances that affects or may affect the worker’s initial or continuing entitlement to compensation.

             (2)  The commission may suspend, reduce or terminate any compensation otherwise payable to a worker where the worker fails to comply with subsection (1).

1998 c19 s12

Back to Top

Rep. by 2001 c10 s13

   54.2 [Rep. by 2001 c10 s13]

2001 c10 s13

Back to Top

Application for compensation

      55. Where a worker or dependent applies for compensation he or she shall file with the commission an application for the compensation, together with the certificate of the attending doctor, and other proof of his or her claim that may be required by the commission.

1983 c48 s43

Back to Top

Duties of employer

      56. (1) An employer shall, within 3 days after the occurrence of an injury to a worker in his or her employment as a result of which the worker is disabled from earning full wages or the worker is entitled to medical aid, notify the commission in writing of

             (a)  the occurrence of the injury and nature of it;

             (b)  the time when the injury occurred;

             (c)  the name and address of the worker;

             (d)  the place where the injury occurred;

             (e)  the name and address of the doctor who looks after the injury; and

             (f)  other particulars required by the commission.

             (2)  An employer shall make further and other reports respecting the injury and workers that may be required by the commission.

             (3)  Where an employer fails to notify the commission of the occurrence of an injury the commission may in relation to compensation paid in respect of that injury charge the cost of the claim against the experience record of that employer.

1983 c48 s44

Back to Top

Duties of health care provider

      57. (1) A health care provider attending or consulted upon a case of injury to a worker shall provide reports in a form that may be required by the commission in respect of the injury.

             (2)  A health care provider in attendance upon an injured worker shall give reasonable and necessary information, advice and help to enable the worker or his or her dependents to apply for compensation and to provide proof that may be required by the commission.

2001 c10 s14

Back to Top

Medical records

      58. Where a worker applies for compensation he or she is considered to have authorized a hospital authority to disclose to the commission information contained in the records of the hospital authority, and that disclosure to the commission shall not be construed as contrary to section 35 of the Hospitals Act.

1983 c48 s46; 1991 c43 s22

Back to Top

Medical information

   58.1 (1) Where the commission receives a request from a worker’s employer for medical information related to an injured worker and the commission believes that providing the information to the employer is reasonably necessary for the determination of the worker’s fitness to return to work, the commission may provide the information to the employer.

             (2)  Where the commission provides an employer with information about a worker under subsection (1), the worker is considered to have consented to the provision of the information.

             (3)  The commission shall inform a worker where it provides information about him or her to his or her employer under subsection (1).

1998 c19 s13

Back to Top

Claim investigated

      59. The commission shall investigate and process a claim that has been filed with the commission at the earliest convenient date.

1983 c48 s47

Back to Top

Proof required

      60. (1)  An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker.

             (2)  The commission may require the proof which it considers necessary of the existence and condition of dependents in receipt of compensation.

1983 c48 s48; 2001 c10 s15

Back to Top

Presumption

      61. Where the injury arose out of the employment, it shall be presumed, unless the contrary is shown, that it occurred in the course of the employment, and where the injury occurred in the course of the employment, it shall be presumed, unless the contrary is shown, that it arose out of the employment.

1983 c48 s49

Back to Top

Medical examination required

      62. The commission may require a worker applying for or receiving compensation to submit to a medical examination by the commission or its appointed officer and, in default of the requirement being complied with, may withhold the compensation.

1983 c48 s50

Back to Top

Objection to claim

      63. (1) A person who objects to a claim that has been filed with the commission shall file with the commission a written notice within 10 days after the date the claim was first reported to the person objecting.

             (2)  A notice filed under subsection (1) shall state fully the nature of the objection and the reason for it, and a copy shall be handed to the worker or mailed to his or her last known address.

             (3)  Where an objection to a claim is filed, the commission shall inquire into the claim within 45 days after the objection is filed.

1983 c48 s51

Back to Top

Power to review compensation

      64. The commission may reopen, rehear, redetermine, review or readjust a claim, decision or adjustment, where

             (a)  an injury has proven more serious or less serious than it was considered to be;

             (b)  new evidence relating to the claim, decision or adjustment has been presented to it;

             (c)  a change has occurred in the condition of an injured worker or in the number, circumstances or condition of dependents or otherwise; or

             (d)  a worker is not following medically prescribed treatment.

1983 c48 s52

Back to Top

Compensation where fatal accident

      65. (1) Where the death of a worker results from an injury, the amount of compensation paid to the worker's surviving dependent spouse or cohabiting partner and children and the expenses paid for the burial of the worker shall be as prescribed and regulations may be made with retroactive effect.

         (1.1)  Notwithstanding subsection 123(1), the commission may increase annually the amount of compensation paid to the worker's surviving dependent spouse or cohabiting partner and children by applying the Consumer Price Index for Canada as published by Statistics Canada.

             (2)  Where compensation is not payable under subsection (1) and a person other than those mentioned in subsection (1) is a dependent, a sum proportionate to the monetary loss to those dependents occasioned by the death of the worker that may be determined by the commission shall be paid by the commission to the dependents.

             (3)  Payments provided for in subsection (2) shall continue only as long as in the opinion of the commission it might reasonably have been expected that the worker, had he or she lived, would have continued to contribute to the support of the dependent.

1983 c48 s53; 1992 c29 s11; 2001 c22 s41

Back to Top

Payment to a remarried spouse

   65.1 (1) A person whose monthly allowance as a surviving dependent spouse was terminated on or after April 17, 1985 due to his or her remarriage is entitled to receive the compensation that he or she would have received had the monthly allowance not been terminated.

         (1.1)  A person whose monthly allowance as a surviving dependent spouse was terminated before April 17, 1985 due to his or her remarriage is entitled to receive the compensation that he or she would have received on or after April 17, 1985 had the monthly allowance not been terminated.

             (2)  Notwithstanding section 43, no interest shall be paid on compensation which would have been paid from April 17, 1985 to December 31, 1992 .

             (3)  No amount shall be paid under this section to the estate of a person.

             (4)  Subsection (3) does not apply to an amount to which a person is entitled under subsection (1.1) where he or she died after February 9, 2006 .

2001 c10 s16; 2006 c5 s1

Back to Top

Method of payment

      66. The method of calculating compensation under section 65 and the manner in which compensation is paid under that section may be prescribed with effect from the date of the publication of the regulation, or an earlier or later date that may be set out in the regulation.

1983 c48 s54

Back to Top

Compensation may be apportioned

      67. (1) Where compensation is payable to dependents under section 65, the commission may apportion the compensation among the dependents in the manner and to the degree that the commission considers is just in the circumstances.

             (2)  Notwithstanding subsection (1), the commission shall not pay in respect of dependents of a worker a total amount greater than is provided for the respective dependents under section 65.

1983 c48 s55

Back to Top

Compensation may be withheld

      68. The commission may withhold compensation payable to a parent with respect to the death of a child where the employment of the child was unlawful under a statute.

1983 c48 s56

Back to Top

Compensation unpaid at death

      69. Where death results from an injury or after an injury, compensation payable with respect to a portion of the period between the date of the injury and the date of the death may be paid by the commission to those dependents of the deceased worker who the commission considers to be appropriate recipients.

1983 c48 s57

Back to Top

Household to be continued

      70. Where a worker in relation to whom section 65 applies does not leave a spouse or cohabiting partner or where the spouse or cohabiting partner of the worker dies, and in the opinion of the commission it is desirable to continue the existing household and where a relative of the worker or of the spouse or cohabiting partner or other suitable person acts as foster parent in keeping up the household and maintaining and taking care of the children entitled to compensation in a manner which the commission considers satisfactory, the foster parent, while so doing, is entitled to receive the same monthly payments of compensation for himself or herself and the children as if he or she were the spouse or cohabiting partner of the deceased.

1983 c48 s58; 2001 c22 s42

Back to Top

Rep. by 1992 c29 s12

      71. [Rep. by 1992 c29 s12]

1992 c29 s12

Back to Top

Payments to children

      72. (1) Where payments are made in respect of a child they shall stop when the child reaches the age of 18 years or dies but compensation is payable in respect of an invalid child without regard to the age of the child and payment to the child shall continue so long as in the opinion of the commission it might reasonably have been expected that the worker, had he or she lived, would have continued to contribute to the support of the child.

             (2)  Where in the opinion of the commission the providing of further education to a child appears advisable, the commission in its discretion may on application extend the period for which compensation shall be paid in respect of the child for an additional period as is spent by the child in the furthering of his or her education but in no case beyond the age of 25 years.

1983 c48 s60; 1992 c29 s13

Back to Top

Compensation for disability

      73. (1) Where, as the result of an injury, a worker is disabled or impaired either permanently or temporarily, totally or partially, the commission shall pay in relation to the worker

             (a)  medical expenses as provided for in section 84;

             (b)  a lump sum award for the permanent impairment as determined by the commission after consideration of a rating schedule; and

             (c)  compensation for the loss of earning capacity resulting from the injury calculated in accordance with section 74.

             (2)  The maximum and minimum lump sum awards payable under paragraph (1)(b) shall be as prescribed by regulations.

             (3)  The board of directors may for the purpose of paragraph (1)(b) approve a rating schedule which may be considered in calculating the amount of an award for a permanent impairment arising out of an injury.

1983 c48 s61; 1986 c38 Sch; 1992 c29 s14

Back to Top

Lost earning capacity

      74. (1) Where injury to a worker results in loss of earnings beyond the day of the injury, the commission shall estimate the effect of the injury on the loss of earning capacity resulting from the injury and shall ensure compensation to the worker on the basis of the estimated loss.

             (2)  For periods of wage loss after December 31, 1997, the rate used for calculating a worker's loss of earning capacity shall be 80% of the difference between the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury, subject to the maximum prescribed amount under subsection 80(8), and the average weekly net earnings the worker is estimated to be capable of earning at suitable employment after sustaining that injury.

         (2.1)  [Rep. by 1997 c38 s1]

         (2.2)  [Rep. by 1997 c38 s1]

         (2.3)  [Rep. by 1997 c38 s1]

         (2.4)  [Rep. by 1994 c12 s9]

             (3)  The commission for the purpose of subsection (2) may determine that a worker is capable of working in suitable employment and estimate the wage he or she could earn in that employment.

             (4)  Where a worker reaches the age of 65 years, the compensation payable under this section shall stop.

             (5)  Notwithstanding subsection (4) where a worker is 63 years old or more at the beginning of his or her loss of earnings resulting from the injury, the commission may provide the compensation under subsection (1) for a period of not more than 2 years following the date of the injury.

1983 c48 s62; 1992 c29 s15; 1994 c12 s9; 1997 c38 s1; 2001 c10 s17

Back to Top

Compensation to be reviewed

   74.1 (1) Extended earnings loss benefits being paid to a worker may be reviewed periodically by the commission.

         (1.1)  Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annually to his or her estimated annual earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

             (2)  Notwithstanding subsection (1.1), the extended earnings loss benefits being paid to a worker shall not be increased under subsection (1.1) by applying the Consumer Price Index for Canada until the time that the amount of compensation being paid to that worker is equal to 80% of that worker's estimated annual earnings as adjusted by the application of the Consumer Price Index for Canada.

1992 c29 s16; 2001 c10 s18

Back to Top

Annuity at age 65

      75. (1) Where a worker who is eligible for benefits as a result of an injury that occurred after December 31, 1983 reaches the age of 65, an amount equal to the amount of a benefit that the worker demonstrates to the commission, that he or she has lost as a result of an injury for which he or she is receiving compensation under this Act, under the Canada Pension Plan or the Quebec Pension Plan or from a registered employer sponsored pension plan covering the worker and which is registered with and certified by the Superintendent of Pensions in accordance with the Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada shall be paid to him or her by the commission.

             (2)  All the money that the commission has set aside in reserves of the commission on behalf of a worker to provide an annuity shall, after December 31, 1992 , revert to the injury fund of the commission.

             (3)  After December 31, 1992 a right that a worker may have had to receive the money set aside in reserves of the commission prior to January 1, 1993 or to have the money paid into an established superannuation fund is extinguished.

1983 c48 s63; 1992 c29 s17; 1998 c19 s14

Back to Top

Earning capacity reviewed

      76. Where the commission is satisfied that the average earnings of the worker at the time of the worker's injury do not represent the worker's earning capacity

             (a)  because of the worker's age; or

             (b)  because the worker is in the course of learning a trade, occupation, profession or calling

it may, in the case of a temporary disability, adjust the amount of compensation and, in the case of a permanent disability, calculate the award, by taking into account the probable increase in average earnings.

1983 c48 s64

Back to Top

Recurrence

      77. Where an injured worker suffers a recurrence of an injury, the compensation payable to him or her shall be based on the average weekly earnings at the time of his or her loss of earnings resulting from the recurrence of the injury, less compensation he or she is already receiving in respect of that injury.

2001 c10 s19

Back to Top

Elimination of minimum compensation

      78. (1) In this section, "former provision" means section 78 as it read before it was repealed and replaced by this section.

             (2)  Where a worker was in receipt of a minimum amount of extended earnings loss benefits in accordance with the former provision on the date this section comes into force, the earnings loss benefits being paid to that worker shall not be increased under subsection 74.1(1.1) until the amount of compensation being paid to that worker is equal to 80% of that worker's estimated annual earnings as adjusted by the application of the Consumer Price Index for Canada.

             (3)  Where a worker was in receipt of a minimum amount of earnings loss benefits other than extended earnings loss benefits in accordance with the former provision on the date this section comes into force, the earnings loss benefits being paid to that worker shall continue at the minimum amount for as long as he or she is otherwise entitled to those benefits.

             (4)  Where a worker referred to in subsection (3) becomes entitled to extended earnings loss benefits, subsection (2) shall apply.

2001 c10 s19

Back to Top

Rescue work

      79. In the case of a worker suffering injury by accident arising out of and in the course of the employment while doing rescue work for the saving of human life in a mine or in an industry, or on the premises of either of them, during or immediately after an explosion, injury, fire or other catastrophe, the compensation payable in that case shall be calculated on the basis of 100% of net earnings instead of the percentages otherwise provided in this Act.

1983 c48 s67

Back to Top

Calculation of earnings

      80. (1) Average weekly earnings shall be calculated on the basis of

             (a)  the amount earned in the period of 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; or

             (b)  the rate of daily, weekly, monthly or other regular remuneration that the worker was receiving at the beginning of the loss of earnings as a result of the injury,

whichever, in the opinion of the commission, seems more equitable.

             (2)  In calculating average weekly earnings, they shall be considered not to exceed 1/52 of the prescribed maximum compensable earnings in effect at the beginning of the loss of earnings resulting from the injury, or at the beginning of the recurrence of the loss.

             (3)  Where the employer was accustomed to paying to the worker a sum of money to cover special expenses imposed on him or her by the nature of his or her employment, that sum shall not be included as part of his or her earnings.

             (4)  Where, owing to the shortness of the time during which the worker was in the employment of his or her employer or the casual nature of his or her employment or the terms of his or her employment, it is inequitable to calculate the rate of remuneration as of the date of the injury, regard may be had to the average weekly or monthly amount which during the 12 months before the injury was being earned by a person in the same grade employed at the same work by the same employer or where there is no person so employed then by a person in the same grade employed in the same class of employment and in the same locality.

             (5)  Where a worker who is injured is at the time of his or her injury under concurrent contracts of service with 2 or more employers his or her average earnings shall be determined as though his or her earnings from those employers were earnings from the employer for whom he or she was working at the time of the injury and, notwithstanding paragraph 2(v), his or her net earnings means his or her average earnings as determined under this section less the total of the amounts described in subparagraphs 2(v)(i), (ii) and (iii).

             (6)  Where in a case it seems more equitable, the commission may award compensation, having regard to the earnings of the worker at the time of the injury.

             (7)  Where a worker has received compensation for 13 consecutive weeks, the commission may review the average annual earnings of the worker preceding his or her loss of earnings and adjust the amount of compensation paid to the worker, notwithstanding what his or her average weekly earnings would be under subsection (1), so that the compensation is more equitably based on his or her average annual earnings.

             (8)  The maximum compensable earnings may be prescribed by regulation with effect from the date of publication of the regulation, or an earlier or later date that may be set out in the regulation.

1983 c48 s68

Back to Top

Benefits to be considered

      81. (1) In fixing the amount of a weekly or monthly payment, regard shall be had to a payment, allowance or benefit which the worker may receive from his or her employer during the period of his or her disability.

             (2)  Where compensation is payable a sum deducted from the compensation under subsection (1) may be paid to the employer out of the injury fund.

             (3)  A benefit relative to an injury that a worker is entitled to receive under the Canada Pension Plan or Quebec Pension Plan shall be considered as wages that the worker is capable of earning in calculating the compensation to be paid by the commission for loss of earning capacity.

         (3.1)  Effective September 1, 1998, a benefit, relative to an injury, that a worker is entitled to receive under the Canada Pension Plan or the Quebec Pension Plan shall be offset from the compensation payable to the worker for loss of earnings at a rate of 75% of the net benefit.

         (3.2)  Subsection (3.1) does not apply where a worker’s Canada Pension Plan or Quebec Pension Plan benefits are considered as wages and offset from the worker’s gross pre-injury earnings under the application of subsection (4).

         (3.3)  Effective September 1, 1998, a benefit that a worker is entitled to receive under a registered employer-sponsored pension plan that is registered with and certified by the Superintendent of Pensions under the Pensions Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada shall be offset from the compensation payable to the worker for loss of earnings at a rate of 75% of the net benefit.

             (4)  Notwithstanding subsection (3), where the commission has, prior to January 1, 1993 , considered Canada Pension Plan or Quebec Pension Plan benefits under that subsection in calculating compensation to be paid to a worker, the commission shall not alter the manner in which that worker's Canada Pension Plan benefits are considered except upon a recurrence of the worker's injury.

             (5)  A benefit that a worker is entitled to receive under a registered employer-sponsored pension plan that is registered with and certified by the Superintendent of Pensions under the Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada   be considered as wages that the worker is capable of earning in calculating the compensation to be paid by the commission for loss of earning capacity.

1983 c48 s69; 1985 c31 s3; 1992 c29 s19; 1993 c16 s1; 1994 c12 s10; 1998 c19 s15

Back to Top

No amount in excess of compensation

   81.1 (1) After January 1, 1993 , an employer and a worker shall not in an agreement provide that the employer shall pay an amount in excess of the amount that the worker, as a result of an injury, is receiving as compensation either under this Act or as if the worker were a worker within the scope of this Act.

             (2)  Where an employer and a worker enter into an agreement in contravention of subsection (1), that agreement is of no effect.

             (3)  [Rep. by 2009 c7 s6]

             (4)  For the purpose of this section, the word "agreement" means a collective agreement or other contract of employment.

1992 c29 s20; 2009 c7 s6

Back to Top

Additional payments

   81.2 (1) Notwithstanding section 81.1, an employer may pay an amount in excess of the amount that the worker, as a result of an injury, is receiving as compensation, either under this Act or as if the worker were a worker within the scope of this Act, where

             (a)  the worker was injured prior to January 1, 1993 and was in receipt of compensation, either under this Act or as if the worker were a worker within the scope of this Act, for 39 continuous weeks or more for that injury on December 31, 1992; and

             (b)  the worker has been in receipt of that compensation continuously from December 31, 1992 .

             (2)  Notwithstanding subsection (1), a payment shall not be made to a worker under that subsection where the worker is receiving extended earnings loss benefits as defined by the Board of Directors under section 5.

             (3)  The amount paid by an employer in excess of the amount that the worker, as a result of an injury, is receiving as compensation, either under this Act or as if the worker were a worker within the scope of this Act, shall not be greater than the difference between the amount paid as compensation on December 31, 1992, either under this Act or as if the worker were a worker within the scope of this Act, and the net earnings that the worker would have been receiving on December 31, 1992 if the worker had been working on that date.

             (4)  Notwithstanding section 81, in fixing the amount of a weekly or monthly payment, the commission shall not have regard to payments made by an employer under this section.

             (5)  This section is considered to have come into force on January 1, 1995 .

1995 c19 s1

Back to Top

Payment of compensation

      82. (1) Payments of compensation shall be made in the manner and in the form that may appear to the commission to be most convenient.

             (2)  In the case of a mentally disabled person compensation payments may be made to a person who in the opinion of the commission is best qualified to administer the payments, whether or not the person to whom the payment is made is the legal guardian of the mentally disabled person.

             (3)  Where a person entitled to compensation is committed to a mental hospital or to a jail, penitentiary or place of detention, compensation is not payable for the period of confinement but the commission may pay the whole or a part of the compensation so withheld to dependents of the person confined or to other persons who in the opinion of the commission are best qualified to administer the payments.

             (4)  Where the person referred to in subsection (3) is under 16 years of age compensation payable to him or her may be paid, instead, to the person who, in the opinion of the commission, is most suitable.

1983 c48 s70

Back to Top

Compensation not assignable

      83. Except with the approval of the commission or where there is a court order for support, a sum payable as compensation may not be assigned, charged or attached, nor shall it pass by operation of law except to a personal representative, nor shall a claim be set off against it.

1986 c38 s7

Back to Top

Overpayment of compensation

   83.1 (1) Where the commission determines that an amount of compensation paid to a worker, or to another person, as a result of an injury to the worker, by the commission exceeds the amount to which the worker, or other person, is entitled, the commission may recover the overpayment from the worker or the worker’s estate as a debt due the commission by action in a court.

             (2)  In an action begun as a result of a determination by the commission that it has made an overpayment of compensation, the court does not have jurisdiction to determine whether an overpayment occurred or the amount of the overpayment.

1998 c19 s16

PART V
MEDICAL AID

Back to Top

Where medical aid needed

      84. (1) The commission shall provide a worker who is entitled to compensation under this Act or who would have been entitled had he or she been disabled longer than the day of the injury with the medical aid that in the opinion of the commission may be necessary as a result of the injury.

             (2)  The commission may make a daily allowance to an injured worker for his or her subsistence when, under its direction, he or she is undergoing treatment at a place other than the place where he or she ordinarily lives.

             (3)  The worker is entitled to the medical aid that the commission may decide is necessary or advisable, including

             (a)  the prosthesis and apparatus that may be necessary as a result of an injury;

             (b)  having the prosthesis and apparatus kept in repair or replaced;

             (c)  having clothing which is damaged or worn by the use of the prosthesis or apparatus kept in repair or replaced;

             (d)  the replacement of an article of clothing destroyed by an injury or the cause of the injury and the replacement or repair, as the commission may determine, of that article;

             (e)  those dental appliances and apparatus that may be necessary as a result of an injury;

             (f)  having the dental appliances and apparatus kept in repair or replaced;

             (g)  those hearing and vision aids that may be necessary as a result of an incident causing personal injury or, where there is no personal injury, as a result of a work incident that is proven to the satisfaction of the commission; and

             (h)  having the hearing and vision aids repaired or replaced.

1983 c48 s72

Back to Top

Medical aid

      85. (1) The supervision and control of medical aid and questions as to the necessity, character and sufficiency of medical aid which is provided shall be determined by the commission.

             (2)  A health care provider and hospital official consulted respecting or having the care of a worker shall provide to the commission the reports that may be required by the commission in respect of the worker.

             (3)  The fees or charges payable for medical aid and health care provider reports

             (a)  shall be fixed by the commission; and

             (b)  shall not be more than the commission considers reasonable and appropriate for service rendered to a worker,

and an action does not lie for an amount larger than that fixed by the commission.

             (4)  A health care provider or other person, entitled to be paid by the commission under this Act for services performed or for medicines or materials supplied, shall not make a charge against an injured worker, an employer or a person other than the commission for those services, medicines or materials.

1983 c48 s73; 2001 c10 s20

Back to Top

Re contributions for medical aid

      86. (1) An employer shall not directly or indirectly collect, receive or retain from a worker contributions towards the expense of medical aid.

             (2)  Where, in conjunction with or apart from the medical aid to which workers are entitled free of charge, further aid or other service or benefit is or is proposed to be given or arranged for, a question arising as to whether a contribution from workers is prohibited by this Act shall be determined by the commission.

1983 c48 s74

Back to Top

First medical treatment

      87. (1) Where a worker has been so seriously injured within the meaning of this Act that he or she cannot continue at his or her regular work, the employer shall at his or her own expense as soon as reasonably possible after the injury obtain necessary medical aid or convey the worker to a place where the worker may receive medical aid, and the employer at his or her own expense shall, upon the occurrence of an injury to 1 of his or her workers, provide immediate transportation to a hospital should that be necessary or to a place where proper medical aid can be given and shall also provide the giving of medical aid that may be necessary to the injured worker upon the journey.

             (2)  Where an employer fails to comply with subsection (1), a person may obtain medical aid or convey the injured worker to a hospital or place referred to in that subsection and where the employer fails to pay the reasonable charges for obtaining the aid or for the conveyance the commission may pay the charges and the employer is liable to pay the commission double the amount paid and the payment of the amount may be enforced in the same manner as an assessment.

1983 c48 s75

PART VI
RETURN TO WORK AND REHABILITATION

Back to Top

Rehabilitation

      88. The commission may take those measures and make those expenditures that it may in its discretion consider necessary or expedient

             (a)  to help in getting injured workers back to work;

             (b)  to help in lessening or removing a handicap resulting from a worker’s injury;

             (c)  to help in the rehabilitative measures of personal care and home care; and

             (d)  to provide counselling, academic and vocational services to a dependent spouse or cohabiting partner who survives a worker, where the worker’s death resulted from an injury which occurred before July 1, 1996 .

2001 c10 s21; 2001 c22 s43

Back to Top

Duty to co-operate in return to work

      89. (1) An employer shall co-operate in the early and safe return to work of a worker injured in his or her employment by,

             (a)  contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery;

             (b)  providing suitable employment that is available and consistent with the worker’s functional abilities and that, where possible, restores the worker’s pre-injury earnings;

             (c)  giving the commission the information the commission may request concerning the worker’s return to work; and

             (d)  doing other things that may be prescribed in regulations made under section 123.

             (2)  The worker shall co-operate in his or her early and safe return to work by,

             (a)  contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery;

             (b)  assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker’s functional abilities and that, where possible, restores his or her pre-injury earnings;

             (c)  accepting suitable employment identified under paragraph (b);

             (d)  giving the commission the information the commission may request concerning the worker’s return to work; and

             (e)  doing other things that may be prescribed in regulations made under section 123.

             (3)  The commission may contact the employer and the worker to monitor their progress on returning the worker to work to determine whether they are fulfilling their obligations to co-operate and to determine whether any assistance is required to facilitate the worker’s return to work.

             (4)  The employer or the worker shall notify the commission of any difficulty or dispute concerning their co-operation with each other in the worker’s early and safe return to work.

             (5)  The commission shall attempt to resolve the dispute through mediation and, if mediation is not successful, shall decide the matter within 60 days after receiving the notice or within the longer period that the commission may determine.

             (6)  Where mediation is provided under this section, the mediator shall not participate in a hearing or proceeding in relation to the subject of the mediation without the consent of the parties to the hearing or proceeding.

             (7)  Where the commission determines that a worker has failed to comply with this section, the commission may suspend, reduce or terminate the worker’s compensation.

             (8)  Where the commission determines that an employer has failed to comply with this section, the commission may levy a penalty on the employer not exceeding the cost to the commission of providing benefits, return to work and rehabilitation services to the worker while the non-compliance continues.

             (9)  A penalty payable under subsection (8) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

2001 c10 s21

Back to Top

Obligation to re-employ

   89.1 (1) An employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

             (2)  This section applies only to an employer and a worker who had been in an employment relationship for a continuous period of one year immediately prior to the date of the worker's injury.

             (3)  This section does not apply to an employer who regularly employs fewer than 20 workers.

             (4)  The commission may determine the following matters on its own initiative or shall determine them if a worker and an employer disagree about the fitness of the worker to return to work:

             (a)  where the worker has not returned to work with the employer, whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work; and

             (b)  where the commission has previously determined that the worker is medically able to perform suitable work, whether the worker is medically able to perform the essential duties of the worker’s pre-injury employment.

             (5)  When a worker is medically able to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall,

             (a)  offer to re-employ the worker in the position that the worker held on the date of injury; or

             (b)  offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of injury.

             (6)  When a worker is medically able to perform suitable work but is unable to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

             (7)  An employer to whom this section applies shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

             (8)  An employer is obligated under this section until the earliest of,

             (a)  2 years after the date of disability;

             (b)  one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and

             (c)  the date on which the worker reaches 65 years of age.

             (9)  Where an employer re-employs a worker in accordance with this section and then terminates the employment within 6 months, the employer is presumed not to have fulfilled the employer’s obligations under this section.

          (10)  An employer may rebut the presumption in subsection (9) by showing that the termination of the worker’s employment was not related to the injury.

          (11)  Upon the request of a worker or on its own initiative, the commission shall determine whether an employer has fulfilled the employer’s obligations to the worker under this section.

          (12)  The commission is not required to consider a request under subsection (11) by a worker who has been re-employed and whose employment is terminated within 6 months where the request is made more than 3 months after the date of termination of employment.

          (13)  Where the commission decides that an employer has not fulfilled the employer’s obligations to a worker, the commission may,

             (a)  levy a penalty on the employer not exceeding the amount of the worker’s net average earnings for the 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; and

             (b)  make payments to the worker for a maximum of one year as if the worker were entitled to payments under section 74.

          (14)  A penalty payable under subsection (13) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

          (15)  Where this section conflicts with a collective agreement that is binding upon an employer, and the employer’s obligations under this section give a worker greater re-employment terms than does the collective agreement, this section prevails over the collective agreement.

          (16)  Subsection (15) shall not operate to displace the seniority provisions of a collective agreement.

          (17)  This section shall only apply in respect of an injury to a worker which occurs on or after January 1, 2002 .

2001 c10 s21; 2009 c7 s7

Back to Top

Labour market re-entry assessment and plan

   89.2 (1) The commission shall provide a worker with a labour market re-entry assessment where

             (a)  it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury;

             (b)  the worker’s employer has been unable to arrange work for the worker that is consistent with the worker’s functional abilities and that restores the worker’s pre-injury earnings; or

             (c)  the worker’s employer is not co-operating in the early and safe return to work of the worker.

             (2)  The commission shall determine, after reviewing the results of an assessment, whether a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury, and shall determine the employment that is suitable for the worker.

             (3)  Where the commission determines that a worker requires a labour market re-entry plan, the commission shall arrange for a plan to be prepared for the worker.

             (4)  A labour market re-entry plan shall be prepared in consultation with

             (a)  the worker and, unless the commission considers it inappropriate to do so, the worker’s employer; and

             (b)  the worker’s health care providers if the commission considers it necessary to do so.

             (5)  A plan shall contain the steps necessary to enable a worker to re-enter the labour market in the employment that is suitable for the worker.

             (6)  A worker shall co-operate in all aspects of a labour market re-entry assessment or plan provided to the worker.

             (7)  The commission shall pay the expenses related to a labour market re-entry assessment and plan that the commission considers appropriate to enable the worker to re-enter the labour market.

             (8)  Where a worker was injured prior to January 1, 2002 and has received services under section 89 as it read prior to January 1, 2002 , the worker shall not be entitled to a labour market re-entry assessment or plan except where the commission considers it appropriate.

2001 c10 s21

Back to Top

Provision of information

   89.3 (1) Where a worker or a worker’s employer requests, a health care provider shall give the commission, the worker and the employer information concerning the worker’s functional abilities on the form that may be required by the commission.

             (2)  The commission shall pay a health care provider for providing information under this section and shall fix the fee to be paid.

             (3)  A person who receives the information in subsection (1) on behalf of an employer shall not disclose that information except to a person who is assisting the employer in returning the worker to work.

2001 c10 s21

Back to Top

Construction industry

   89.4 (1) Sections 89 and 89.1 shall not apply to a worker who performs construction work and to an employer who is engaged primarily in construction in respect of those of his or her workers who perform construction work.

             (2)  Notwithstanding subsection (1), a worker who performs construction work and an employer who is engaged primarily in construction shall be required to comply with the requirements respecting the duty to co-operate and the re-employment of those workers that may be prescribed in regulations made under section 123.

2001 c10 s21

PART VII
INDUSTRIAL DISEASES

Back to Top

Industrial disease

      90. (1) Where

             (a)  a worker suffers from an industrial disease and is as a result disabled or his or her death is caused by an industrial disease; and

             (b)  the disease is due to the nature of the employment in which he or she is engaged, whether under 1 or more employments,

the worker or his or her dependents are entitled to compensation as if the disease were an injury, and the date of disablement were the date of injury, subject to the modifications mentioned in this section, unless at the time of entering into the employment he or she had falsely represented himself or herself as not having previously suffered from the disease.

             (2)  Subject to the approval of the Lieutenant-Governor in Council, the commission may make regulations setting out industrial diseases and associating descriptions of processes with the diseases.

             (3)  Where a worker referred to in subsection (1) at or immediately before the date of the disablement was employed in a prescribed process and the disease contracted is the prescribed disease associated with the description of the process, the disease shall be considered to have been due to the nature of that employment unless the contrary is proved.

         (3.1)  Where a worker referred to in subsection (1), who, at or immediately before the date of the disablement was employed in a process involving asbestos, is suffering from the industrial disease known as asbestosis, the disease shall be conclusively considered to have been due to the nature of that employment.

             (4)  Nothing in this section affects the right of a worker to compensation in respect of a disease to which this section does not apply where the disease is the result of an injury in respect of which he or she is entitled to compensation under this Act.

             (5)  The commission may by written order require a worker in an employment to undergo a medical examination for the purpose of determining whether the worker is affected with an industrial disease or, where so affected, the progress of the disease.

             (6)  Where a worker, required under this section to undergo a medical examination, fails or refuses to do so the employer of the worker shall not continue or maintain the worker in his or her employ until the worker has undergone the required medical examination.

1983 c48 s78; 1992 c29 s22

Back to Top

Industrial disease compensation

   90.1 (1) A worker or his or her dependents are entitled to compensation under section 90 or 91 notwithstanding that the worker is not employed at the date of disablement.

             (2)  The amount of compensation payable under section 90 or 91 to a worker or his or her dependents referred to in subsection (1) shall be calculated, in accordance with section 74, on the basis of the worker's average weekly net earnings in his or her last trade, occupation, profession or calling prior to the date of disablement, adjusted to the date of disablement by the application of the Consumer Price Index for Canada as published by Statistics Canada.

             (3)  This section comes into force on January 1, 1994 and, notwithstanding a worker's date of disablement is before January 1, 1994, a worker or his or her dependents is only entitled to compensation from January 1, 1994.

1994 c12 s11

Back to Top

St. Lawrence

      91. (1) Where

             (a)  a worker suffers from a chronic obstructive pulmonary disease or from silicosis or carcinoma and is as a result disabled from earning full wages at the work at which he or she was employed, or his or her death is caused by that disease and the worker was employed, whether before or after January 1, 1951, in fluorspar extraction, or both, at St. Lawrence; or

             (b)  a worker or a deceased worker is listed in the Appendix to chapter XVIII of the Report of the Royal Commission Respecting Radiation, Compensation and Safety at the Fluorspar Mines, St. Lawrence, Newfoundland, 1969, as being entitled to compensation under the commission's recommendations, whether by majority decision or decision of a single member,

the disease or disability suffered by the worker or his or her death shall be considered to be due to the nature of the employment in those mines unless it is traceable to other employment and the worker or, where the worker is dead, his or her dependents are entitled to compensation

             (c)  from the date referred to in subsection (4); or

             (d)  from the date of disability or death,

whichever is later, as if the disease were an injury arising out of and in the course of his or her employment in those mines and the disablement or death were the happening of the injury.

             (2)  The intent of this section is that the recommendations respecting compensation appearing in the report referred to in subsection (1) including minority recommendations, shall be fully implemented, and this section shall be interpreted in the light of this intent, and, to dispel doubt, the Lieutenant-Governor in Council may make regulations for the purpose of giving effect to that intent.

             (3)  Nothing in this section shall entitle

             (a)  a worker or the dependent of a deceased worker or another person to claim compensation for a period before the date mentioned in subsection (4); or

             (b)  the personal representative, surviving spouse, cohabiting partner or next of kin of a deceased dependent of a worker, where that surviving spouse, cohabiting partner or next of kin is not a dependent of that worker to claim compensation for a period before or after the date mentioned in subsection (4).

             (4)  This section shall be considered to have come into force on September 1, 1969 but applies only in relation to a worker who

             (a)  before January 1, 1984 was employed in fluorspar extraction at St. Lawrence; or

             (b)  is referred to in paragraph (1)(b).

1983 c48 s79; 1985 c31 s4; 2001 c22 s44

Back to Top

Medical committees

      92. (1) In this section "committee" means a committee of medical referees constituted and appointed under this section.

             (2)  The commission

             (a)  shall constitute a committee of medical referees upon the written request of a worker or the personal representative of a deceased worker made not later than 90 clear days after the making of a medical decision by the commission or, where, in the opinion of the commission, exceptional circumstances exist, a longer period that the commission may prescribe; or

             (b)  may constitute a committee of medical referees where the commission feels it is desirable to constitute such a committee,

for the purpose of investigating and determining in relation to a claim made by a worker or the dependents of a deceased worker, the nature of an industrial disease and its relationship to the processes directly associated in the regulations with the disease and a committee may be constituted to make an investigation and determination in respect of a number of cases based on death or disability alleged to be caused by that disease.

             (3)  A committee shall consist of 3 medical practitioners recognized as specialists in the class of injury or illness for which the committee is constituted and shall be appointed in the manner provided as follows from a list of specialists prepared by the commission.

             (4)  In the case of a committee constituted under paragraph (2)(a)

             (a)  the commission shall, by a notice sent by registered mail, require the worker or the dependents to appoint from the list previously mentioned 1 specialist within 14 days after the mailing of the notice by the commission and where the worker or his or her dependents fail to make that appointment, the minister shall make an appointment from the list and that member shall be considered to be appointed by the worker or his dependents and the appointment by the dependents under this subsection shall be effected on their behalf by the personal representative of the deceased worker concerned;

             (b)  the commission shall appoint the 2nd member of the committee from the list and the 2 members appointed by the worker or his or her dependents and the commission shall appoint from the list the 3rd member who shall be chairperson; and

             (c)  where the members appointed by the commission and the worker or his or her dependents are unable to agree on a 3rd member within 2 weeks after they are appointed, the minister shall appoint from the list the 3rd member who shall be chairperson.

             (5)  In the case of a committee constituted under paragraph (2)(b), the commission shall appoint the members of the committee and shall designate 1 of them as chairperson.

             (6)  A committee has the powers conferred on a commissioner by section 3 of the Public Inquiries Act and the power of the commission under section 90 to require the workers concerned to undergo a medical examination.

             (7)  A committee shall conduct those investigations and receive the evidence that it considers necessary for the determination of the questions referred to it by the commission.

             (8)  A committee shall report to the commission its findings on the nature of the disease and its relationship to the processes associated with it in the regulations and where a worker is examined shall certify to the commission

             (a)  the condition of the worker;

             (b)  his or her fitness for employment;

             (c)  where unfit, the cause of his or her unfitness;

             (d)  the extent of his or her temporary or permanent disability because of the disease in respect of which he or she has claimed compensation; and

             (e)  other matters which in the opinion of the commission or the committee may be pertinent to the claim,

and where the claim is made by the dependents of a deceased worker the committee shall certify to the commission

             (f)  the cause of the worker's death;

             (g)  the opinion of the committee as to the reasonableness of the inference that the worker died from the disease;

             (h)  whether the disease is related to any of the processes associated with it in the regulations; and

              (i)  other matters which may, in the opinion of the commission or the committee, be pertinent to the claim.

             (9)  Subject to the approval of the Lieutenant-Governor in Council the commission may make regulations providing for a matter or thing which appears to be necessary or advisable for the operation of this section.

1983 c48 s80

PART VIII
INJURY FUND AND ASSESSMENTS

Back to Top

Injury fund

      93. (1) The injury fund is continued.

             (2)  Compensation, medical aid and other expenses under this Act and the regulations shall be paid out of the injury fund.

1983 c48 s81

Back to Top

Classes of industry

      94. (1) For the purpose of creating and maintaining the injury fund the commission may

             (a)  divide into classes all industries;

             (b)  rearrange the classes of industry provided for in paragraph (a); and

             (c)  transfer an industry to another class.

             (2)  The commission shall assign an industry to its appropriate class and, where an industry includes several departments assignable to different classes, the commission may assign the industry to the class of its principal department or may divide the industry into 2 or more departments, assigning each to its proper class.

1983 c48 s82

Back to Top

Subclasses

      95. (1) The commission may establish those different subclassifications and different rates among the different kinds of industry in the same class or subclass that it considers just.

             (2)  It is not necessary that the assessment upon the employers in a class or subclass be uniform but it may be fixed or graded in relation to the hazard of each or of any of the industries included in the class or subclass.

1983 c48 s83

Back to Top

Assessment or rate modification

      96. (1) Where the commission considers it appropriate, it may establish a program of assessment or rate modification to consider

             (a)  an employer’s record, risk, cost or injury experience;

             (b)  an employer’s compliance with

                      (i)  this Act and the regulations, and

                     (ii)  policies and programs established under section 5; and

             (c)  an employer’s compliance with requirements that may be set by the commission in relation to

                      (i)  provisions respecting health and safety committees, worker health and safety representatives and training for those committees and representatives in the Occupational Health and Safety Act or a regulation made under that Act,

                     (ii)  provisions respecting health and safety programs and policies in the Occupational Health and Safety Act or a regulation made under that Act, and

                    (iii)  where the employer is bound by Part II of the Canada Labour Code , the provisions of that Part and of the regulations made under that Part.

             (2)  A program established under subsection (1) may apply to all industries or may be restricted in application, or may apply in a different manner to an industry specified by the commission.

             (3)  Notwithstanding subsection (2), where the commission believes it would be appropriate to apply a program established under subsection (1) to an industry in a different manner, the commission shall seek the approval of the Lieutenant-Governor in Council to consult with the industry concerning the application by the commission of the program to the industry in a different manner.

             (4)  Where the Lieutenant-Governor in Council approves a consultation under subsection (3), and where, following the consultation, the commission proposes to apply a program established under subsection (1) to the industry with which it has consulted in a different manner, the application shall be subject to the approval of the Lieutenant-Governor in Council, but the Lieutenant-Governor in Council's approval shall only be given where the application to the industry would result in the setting or adopting of requirements by the commission equivalent to or greater than those contained in a program established under subsection (1).

             (5)  A program established under subsection (1) may provide for an increase or decrease to an employer’s assessment or rate, grant a refund or credit to an employer or levy a surcharge on an employer.

2004 c31 s1

Back to Top

Assessment rated on payroll

      97. The commission shall every year assess and levy upon and collect from the employers in each class by an assessment rated upon the payroll, or otherwise as the commission considers appropriate, sufficient funds to meet claims payable during the year.

1983 c48 s85

Back to Top

Manner of assessment

      98. (1) Assessments may be made in the manner and form and at those times and by the procedure that the commission considers adequate and expedient and may be general as applicable to a class or subclass or special as applicable to an industry or part or department of an industry.

             (2)  The commission shall give notice to each employer, in a manner that may be considered by the commission appropriate, of the rate of the assessment applicable in respect of his or her industry and the time when the assessments are due.

             (3)  Assessments may, where the commission considers it expedient, be collected in half-yearly, quarterly or monthly instalments or otherwise, and where it appears that the funds in a class are sufficient the commission may abate an instalment or defer its collection.

1983 c48 s86

Back to Top

Employer to pay assessments

      99. (1) An employer shall pay into the injury fund those assessments that may be levied by the commission and where an assessment or a part of an assessment is not paid in accordance with the terms of the levy the commission has a right of action against the employer in respect of an amount unpaid, together with costs of the action.

             (2)  Notwithstanding a provision respecting estimates of payrolls and notice to employers, an employer, without demand from the commission, shall pay to the commission the full amount of assessments levied in accordance with this Act.

1983 c48 s87

Back to Top

When assessment due

   100. (1) Liability of an employer for an assessment under this Act is due on January 1 in each year in relation to workers employed at that time.

             (2)  Where a worker for whom an assessment is payable is employed in a year after January 1 the liability of the employer for the assessment is due on the date the worker is employed.

             (3)  Priority of the commission in respect of an assessment is considered to vest in the commission on the day the assessment becomes due to the commission, notwithstanding that a notice of assessment has not been issued by the commission.

1983 c48 s88

Back to Top

Information may be required

   101. (1) An employer shall on becoming an employer, or where required by the commission, provide to the commission a statement showing an estimate of the amount of the payroll, together with information that may be required by the commission for the purpose of assigning the industry carried on by the employer to the proper class and of making the assessment in relation to the class.

             (2)  An employer shall at the time and in the form that may be required by the commission

             (a)  provide a certified statement of his or her payroll, including a calculation of a difference between his or her prior year's estimated payroll and the actual payroll;

             (b)  provide the commission with an estimate of his or her payroll for the coming year;

             (c)  remit to the commission money calculated to be owing for the prior year and the amount estimated to be owing for the next year; and

             (d)  provide the commission with the financial statements or other information that the commission considers necessary to determine the employer's assessment.

             (3)  An employer shall keep in the form and with the detail that may be required for the purpose of this Act careful and accurate accounts of wages paid to his or her employees and those accounts shall be produced, on request, to the commission.

             (4)  Where the business of the employer embraces more than 1 branch or class of industry the commission may require separate statements to be made in relation to each branch or class of industry and the statements shall be provided in accordance with subsection (1) or (2).

             (5)  Where an employer does not provide to the commission the statements or accounts referred to in subsections (1), (2) and (3) within the prescribed time the commission may base an assessment or supplementary assessment made upon him or her on a sum that, in its opinion, is the probable amount of the payroll of the employer and the employer is bound by the assessment.

             (6)  Where it is ascertained that the amount referred to in subsection (5) is less than the actual amount of the payroll the employer is liable to pay to the commission the difference between the amount for which he or she was assessed and the amount for which the employer would have been assessed on the basis of his or her payroll.

             (7)  A person shall, where required, make a return to the commission stating whether he or she has employed workers during a period that the commission designates, and where the person has employed workers he or she shall state in the return the nature of the industry in which they were employed and provide other information that the commission may require.

1983 c48 s89; 2001 c10 s22

Back to Top

Calculation of payroll

   102. In calculating and adjusting the amount of the payroll of an employer regard shall be had only to that portion of the payroll that has been paid to the worker that is not in excess of an amount that may be prescribed, and the excess shall be deducted from the amount of the payroll and the assessment shall be based on the payroll as reduced.

1983 c48 s90

Back to Top

No deduction from wages

   103. An employer shall not either directly or indirectly deduct from the wages of his or her workers a part of a sum which the employer is or may become liable to pay into the injury fund or otherwise under this Act or require or permit the workers to contribute in a manner towards indemnifying the employer against liability which he or she may incur under this Act.

1983 c48 s91

Back to Top

Commission may estimate

   104. (1) Where an employee of an incorporated company is a shareholder in the company and is remunerated in whole or in part for his or her services with a share of profits and the employer does not return to the commission what the commission considers to be a reasonable sum for the earnings of the employee, the commission may make an addition to the actual payroll of the employer that it considers reasonable to represent the earnings of the employee.

             (2)  Where an employer is a contractor and sublets the whole or a part of the work to a subcontractor, the commission may assess the employer on the labour portion of the contracts, as determined by the commission.

1983 c48 s92

Back to Top

Credit balance due employer

   105. Money owing to an employer by the commission as a result of an over estimation of the employer's payroll or as a result of his or her prior year's estimated payroll exceeding his or her actual payroll shall, at the discretion of the commission, be refunded to the employer or credited on behalf of the employer in respect of his or her subsequent assessment.

1983 c48 s93

Back to Top

Charges to other classes

   106. (1) Where it appears to the satisfaction of the commission that a worker of an employer in a class is injured or killed owing to the negligence of an employer or of a worker of an employer in another class, the commission may direct that all or a portion of the cost of the claim in that case be charged against the last-mentioned class.

             (2)  Where the commission has adopted a program of assessment or rate modification under section 96 for classes of industry, and it appears to the satisfaction of the commission that a worker has been injured or killed owing to the negligence of another employer or his or her worker, the commission may direct that the costs of the claim be included in the experience account of that employer and, where the employers are in different classes, charged to the class in which that employer is included in the same manner as if those costs had been spent in respect of a worker of that employer.

             (3)  Where it appears to the satisfaction of the commission that the injury to or death of the worker is due to the negligence of 2 or more persons, 1 of whom may be the worker, the commission may direct

             (a)  that the costs of the claim be included and charged in the experience accounts and classes of the employers who, or whose workers, were negligent in proportion to the degree of negligence of each person involved; or

             (b)  where the commission is of the opinion that it cannot establish different degrees of negligence, that the costs of the claim be included and charged in the same manner in the experience accounts and classes of the employers involved in equal proportions.

             (4)  Subsections (1) to (3) do not affect a right of action or indemnity an employer may have against another employer arising out of a contract or agreement made between the employers.

1983 c48 s94; 2004 c31 s2

Back to Top

Cost of medical investigations

   107. The cost of investigations conducted by a committee under section 92 shall be paid out of the injury fund,

             (a)  as a charge on the industries allocated under this Act to the same class as that of the employer of the worker, where the claim is accepted; and

             (b)  as part of the administrative expenses of the commission, where the claim is denied.

1983 c48 s95

Back to Top

Where assessment insufficient

   108. Where in a class the estimated assessments prove insufficient, the commission may make further assessments that may be necessary or may temporarily advance the amount of a deficiency out of a reserve and may add that amount to a later assessment.

1983 c48 s96

Back to Top

Arrangement with other provinces

   109. The commission may make or carry out arrangements with the Workers' Compensation Board of another province to avoid duplication of assessment on the earnings of workers protected at the same time under the laws of 2 or more provinces relating to workers' compensation and may make an adjustment in assessments by the employers of the workers that the commission considers equitable and may repay another Workers' Compensation Board for payment of compensation made by it under those arrangements.

1983 c48 s97

Back to Top

Arrangement with self- insurers

   110. The commission may enter into agreements with those self-insurers that the commission may prescribe providing

             (a)  that the provisions of this Act respecting assessments do not apply to the self-insurers; and

             (b)  the terms and conditions that may be agreed to with respect to payments by the commission in relation to workers of self-insurers.

1983 c48 s98

Back to Top

Where industry temporary

   111. Where an employer engages in an industry, the commission, where it is of the opinion that the industry is to be carried on only temporarily, may require the employer to pay, or to give security for the payment to the commission of a sum which in the opinion of the commission may be sufficient to pay assessments that the commission may make with respect to that industry, and the payment of the sum may be enforced in accordance with section 117.

1983 c48 s99

Back to Top

Former employers

   112. After a person has stopped being an employer he or she has no rights in the injury fund and by ceasing to be an employer he or she shall be considered to have released and discharged the commission from actions and claims arising or proceedings taken, afterwards, in respect of the injury fund.

1983 c48 s100

Back to Top

Change of ownership

   113. (1) Where the business or undertaking, or a part of the business or undertaking, of an employer in relation to which an assessment is unpaid

             (a)  is sold, leased, transferred or disposed of;

             (b)  has changed ownership or reincorporated, or restructured in another way; or

             (c)  has been dealt with in another manner which, in the opinion of the commission, is intended to avoid obligations under this Act,

the commission may

             (d)  determine that a person is the successor of the employer; and

             (e)  levy and collect from the person the amount of an assessment unpaid by the employer at the time of an event referred to in paragraph (a), (b) or (c).

             (2)  An amount required to be paid under paragraph (1)(e) may be collected by the commission in the same manner as an assessment may be collected under this Act and section 122 applies in respect to that amount.

1998 c19 s17

Back to Top

Effect of refusal

   114. (1) An employer who

             (a)  refuses or neglects to make or transmit a payroll return or other statement required under section 101;

             (b)  refuses or neglects to pay an assessment, special or supplementary assessment, or the provisional amount of an assessment, or an instalment or part of the assessment; or

             (c)  refuses or neglects to report to the commission his or her estimate of payroll,

shall, in addition to a penalty or other liability to which he or she may be subject, pay to the commission

             (d)  the full amount and capitalized value, as determined by the commission of the compensation payable in respect of injuries to workers in his or her employ which happened during the period of his or her default;

             (e)  medical aid payable in respect of those injuries; and

             (f)  costs relating to the rehabilitation of workers injured in his or her employ during the period of his or her default,

and the payment of an amount under this subsection may be enforced in the same manner as the payment of an assessment may be enforced, but the amount payable under this subsection shall not exceed an amount which the commission considers reasonable under the circumstances.

             (2)  The commission, where satisfied that a default referred to in subsection (1) was excusable, may relieve the employer in whole or in part of liability under this section.

1983 c48 s102

Back to Top

Accounts within fund

   115. Separate accounts shall be kept of the amounts collected and spent in respect of a class and of a fund set aside by way of reserve, but for the purpose of paying compensation, medical aid and other expenses, the injury fund is nevertheless considered one and indivisible.

1983 c48 s103

Back to Top

Reserves within fund

   116. (1) The commission may, in addition to the amount actually required in each class for the year, assess and collect from the employers in a class surcharges to be set aside as reserves

             (a)  by way of providing a special fund to be used to meet an increase in the capitalization of periodical compensation payments payable in future years, or a portion of the compensation payments, where, in the opinion of the commission, an increase cannot otherwise be provided without placing an undue burden on the employers in a class;

             (b)  by way of providing a reserve fund to be used to meet the part of the cost of claims of workers suffering enhanced disabilities, because of similar or other disabilities previously suffered, that in the opinion of the commission is the result of the previous disabilities, and to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program;

             (c)  by way of providing a special fund to be used to meet the loss arising from a disaster or other circumstances which in the opinion of the commission would unfairly burden the employers in a class; or

             (d)  subject to the approval of the Lieutenant-Governor in Council, by way of providing a special fund to be used to meet the costs of particular needs of the commission that it considers necessary.

             (2)  The commission may, in respect of an industry or class where it is considered expedient, assess and collect in each year a sufficient amount to provide capitalized reserves which are considered sufficient to meet the periodical payments accruing in future years in respect of injuries during each year.

             (3)  Where classes are rearranged in accordance with section 94 the commission may make the adjustment and disposition of the funds, reserves and accounts of the classes affected that it considers just.

1983 c48 s104; 1992 c29 s23

Back to Top

Payment in arrears

   117. An employer who does not pay an assessment or a special assessment when it is due shall pay as a penalty for his or her default the prescribed percentage upon the amount unpaid, and the percentage may be added to the amount of the assessment and payment enforced under section 118.

1983 c48 s105

Back to Top

Where default

   118. (1) Where default is made in the payment of an assessment or special assessment or a part of it the commission may issue its certificate stating that the assessment was made, the amount remaining unpaid on account of it and the person by whom it was payable and the certificate or a copy of it certified by the secretary or chief executive officer of the commission to be a true copy may be filed with the Trial Division or with the Provincial Court and when filed shall become an order of the Trial Division or the Provincial Court and may be enforced as a judgment of the Trial Division or the Provincial Court against that person for the amount mentioned in the certificate.

             (2)  Where an employer defaults in the payment of an assessment and an execution issued upon a judgment entered with respect to the assessment is returned indicating with a certificate from a sheriff or his or her deputy that he or she was unable to satisfy the execution in full and the employer continues to carry on an industry in which workers are employed, a judge of the Trial Division, upon an application made on behalf of the commission by chambers summons, without the issue of a writ or the beginning of an action, may restrain the employer from carrying on an industry until the amount due on the execution and assessments made by the commission and the costs of the application are paid.

1983 c48 s106; 1986 c42 Sch B; 1987 c41 s24; 2013 c16 s25

Back to Top

Directors’ liability

118.1 (1) Where a corporation defaults in the payment of an assessment, or an amount levied under section 113, or a part of it, the directors of the corporation, at the time the corporation defaults, are jointly and individually liable, together with the corporation to pay the amount.

             (2)  A director of a corporation is liable under subsection (1) where,

             (a)  a certificate for the amount of the corporation’s liability referred to in that subsection has been filed under section 118 and execution for that amount has been returned unsatisfied in whole or in part;

             (b)  the corporation has begun liquidation or dissolution proceedings or has been dissolved and the amount of the corporation’s liability referred to in subsection (1) has not been paid within 6 months after a notice of intent to dissolve is filed under section 337 of the Corporations Act after the commencement of liquidation or dissolution proceedings; or

             (c)  the corporation has made an assignment or a receiving order has been made against it under the Bankruptcy and Insolvency Act (Canada ) and a claim for the amount of the corporation’s liability referred to in subsection (1) has not been paid within 6 months after the date of the assignment or receiving order.

             (3)  A director is not liable for an amount payable under subsection (1) unless the claim against the director is made not later than 4 years after he or she last ceased to be a director of the corporation.

             (4)  The liability of a director under subsection (1) is for the total amount owing by the corporation and is not reduced by a proposal respecting or restructuring of or discharge of the liability of the corporation under the Bankruptcy and Insolvency Act (Canada ) or other legislation.

             (5)  Where a director of a corporation pays an amount in respect of a corporation’s liability referred to in subsection (1) in liquidation, dissolution or bankruptcy proceedings, the director is entitled to the same priority as the commission would have been entitled to had the amount not been paid, subject to the commission’s liability being satisfied, and, where a certificate that relates to the amount has been registered, the director is entitled to an assignment of the certificate to the extent of the director’s payment, and the commission is empowered to make that assignment.

             (6)  A director who satisfies a claim under this section is entitled to contribution from the other directors who were liable for the claim.

             (7)  Subsection 118(1) applies, with the necessary changes, where a director fails to pay an amount for which he or she is liable under this section.

1998 c19 s18

Back to Top

Amount in default

118.2 An amount certified as being in default by a person under section 118 is until paid a first lien upon the entire assets of the person and has priority over all other claims except a claim for unpaid wages under the Labour Standards Act and a mechanics lien registered under the Mechanics’ Lien Act.

1998 c19 s18

Back to Top

Board may withhold money

   119. Where the commission owes money to the employer who has defaulted on payment of an assessment, the commission may withhold as much money owed to the employer as is owing by the employer on payment of his or her assessment, and the money withheld by the commission shall be considered as full or partial payment by the employer for the assessment payment.

1983 c48 s107

Back to Top

Assessment where work contracted

   120. (1) Where work is undertaken for a person, in this section called the principal, by a contractor, both the principal and contractor are liable for the amount of an assessment in respect of the work and the assessment may be levied upon and collected from either of them, or partly from 1 and partly from the other, but in the absence of a term in the contract to the contrary the contractor is as between himself or herself and the principal primarily liable for the amount of the assessment.

             (2)  Where work is performed under a subcontract, the principal, the contractor and the subcontractor are liable for the amount of assessment in respect of the work, and the assessment may be levied upon and collected from any or all of them, but in the absence of a term in the subcontract to the contrary the subcontractor is primarily liable for the amount of the assessment.

             (3)  The commission may consider

             (a)  a contractor or subcontractor who has not been assessed with respect to the work carried on by him or her as contractor or subcontractor, or a worker of the contractor or subcontractor to be a worker of the principal; and

             (b)  a worker of a subcontractor to be a worker of the contractor with respect to an industry,

but in the absence of a term in the contract or subcontract to the contrary,

             (c)  the principal is entitled to recover from the contractor the amount or proportionate part of an assessment paid by the principal with respect to the contractor or his or her workers or with respect to the subcontractor or his or her workers; and

             (d)  the contractor is entitled to recover from the subcontractor the amount or proportionate part of an assessment paid by the contractor with respect to the subcontractor or his or her workers.

             (4)  Where a principal is liable for an assessment with respect to work carried on by a contractor,

             (a)  the principal is entitled to withhold from money payable to the contractor an amount which the commission may estimate as the probable amount for which the principal is or may become liable; and

             (b)  in an action that the contractor may bring against the principal the principal has the right to set off the amount against the contractor and the contractor is not entitled to recover from the principal a portion of the amount,

but after the final adjustment by the commission of the amount due with respect to the work carried on by the contractor, the contractor is entitled to an amount still remaining in the hands of the principal after payment of the amount due the commission.

             (5)  As between a contractor and subcontractor the contractor is for the purpose of this section considered a principal and the subcontractor a contractor.

1983 c48 s108

Back to Top

Mechanics' Lien Act

   121. In the case of work or service performed by an employer in an industry for which the employer would be entitled to a lien under the Mechanics' Lien Act, the owner shall see that a sum which the employer is liable to contribute to the injury fund is paid, and where the owner fails to do so he or she is personally liable to pay it to the commission and the commission has the same powers and is entitled to the same remedies for enforcing payment as it possesses or is entitled to in respect of an assessment.

1983 c48 s109

Back to Top

Assessment as lien

   122. (1) There shall be included among the debts which under the Corporations Act or the Trustee Act are in the distribution of the property in the case of an assignment or death or in the distribution of the assets of a company being wound up under either of those Acts to be paid in priority to other debts the amount of an assessment the liability for which accrued before the date of the assignment or death or before the date of the beginning of the winding-up and those Acts have effect accordingly.

             (2)  Notwithstanding paragraph 124(d), the amount of an assessment or a judgment entered in relation to an assessment, is a first lien upon

             (a)  all property, real and personal, of the person to whom the assessment is charged, whether or not that property is used in or in connection with or produced by or in the industry in respect to which the employer is assessed; and

             (b)  all property used in or in connection with or produced in or by the industry for which the employer has been assessed that is owned by another person

s ubject to municipal taxes and a lien with respect to wages under the Mechanics’ Lien Act .

             (3)  In subsection (2) the words "amount of an assessment" include a percentage payable under section 117.

1983 c48 s110; 1986 c12 Sch; 1987 c38 Sch B; 1998 c19 s19

PART IX
REGULATIONS

Back to Top

General regulations

   123. (1) Subject to the approval of the Lieutenant-Governor in Council, the commission may make regulations that are considered necessary for the administration of this Act and may prescribe the form and use of payrolls, records, reports, certificates, declarations and documents that may be required.

             (2)  Subject to the approval of the Lieutenant-Governor in Council, the commission may by regulation prescribe penalties for the violation of this Act or of rules, regulations or orders made under the authority of this Act.

         (2.1)  The commission may, with the approval of the Lieutenant-Governor in Council, make regulations

             (a)  prescribing the obligations of an employer and a worker under section 89; and

             (b)  prescribing the obligations of an employer engaged primarily in construction and a worker who performs construction work in respect of a worker’s early and safe return to work and the re-employment of a worker.

             (3)  Regulations made under this section may be made with retroactive effect.

1983 c48 s111; 2001 c10 s23

Back to Top

Regulations re fishers

   124. The commission may make regulations

             (a)  providing that methods of calculating and levying assessments additional to or different from the methods otherwise provided under this Act may be used for levying assessments for the purpose of this Act on commercial buyers and other commercial recipients of fish, and on a person engaged within the province in transmitting payments to fishers for fish whether landed within the jurisdiction of the province or elsewhere;

             (b)  creating obligations, different from the provisions of this Act, upon commercial buyers and commercial recipients of fish, and masters of fishing vessels, to report to the commission injuries and industrial diseases sustained by fishers, and to provide transportation for initial medical treatment;

             (c)  excluding a portion of the fishing industry or a category of workers or employers in that industry to whom a provision of this Act would otherwise apply from the application of that provision, and to substitute provisions contained in regulations made under this section;

             (d)  providing for the priority in relation to assessment on persons covered by section 40; and

             (e)  providing for other matters incidental or related to the matters set out in this section or section 40.

1983 c48 s112

PART X
PENALTY

Back to Top

Offence

   125. (1) A person who

             (a)  knowingly makes a false statement that affects or may affect the initial or continuing entitlement of a person to compensation or the liability of an employer to pay an assessment;

             (b)  wilfully fails to inform the commission of a change in circumstances that affects or may affect the entitlement of that person to compensation or the liability of that person to pay an assessment, within 10 days of the change; or

             (c)  otherwise contravenes this Act or the regulations,

is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000 or to imprisonment for a term of not more than 6 months, or to both.

             (2)  Where a person is convicted of an offence under this section, the court may, in addition to the fine and a penalty imposed under this Act and the regulations, order the person to repay to the commission money obtained or retained by that person as a result of the commission of the offence.

         (2.1)  An order made under subsection (2) may be registered as a notice of judgment under the Judgment Enforcement Act .

         (2.2)  Nothing in this section affects the right of the commission to obtain a civil remedy in respect of the offence, including proceedings under section 83.1.

             (3)  Penalties imposed under the authority of this Act shall, when collected, be paid over to the commission and shall form part of the injury fund.

1983 c48 s113; 2001 c10 s24

PART XI
REVIEW

Back to Top

Review committee

   126. (1) In this section "committee" means a committee appointed under subsection (2).

             (2)  The Lieutenant-Governor in Council shall at least once in every 5 years appoint a committee of at least 3 members which shall review, consider, report and make recommendations to the Lieutenant-Governor in Council upon matters respecting this Act and the regulations and the administration of each as the committee considers appropriate and upon other matters which the Lieutenant-Governor in Council or the minister may refer to the committee.

             (3)  The Lieutenant-Governor in Council shall, when appointing a committee,

             (a)  designate 1 member of the committee to be the chairperson and another member to be the vice-chairperson of the committee;

             (b)  fix the quorum for meetings of the committee; and

             (c)  prescribe the period within which or the time before which the committee shall report or make its recommendations to the Lieutenant-Governor in Council.

             (4)  Each member of the committee shall be paid expenses which he or she actually incurs in the performance of his or her duties as a member of the committee and which in the opinion of the minister are reasonable and each member, not being an employee of the government of the province, may be paid for his or her services the remuneration that the Lieutenant-Governor in Council fixes.

             (5)  The minister shall provide the technical, clerical and other help that may reasonably be necessary to help the committee and fix the rates of remuneration which shall be paid for that help.

             (6)  The commission shall, out of the injury fund, pay the expenses and remuneration of members of the committee provided for in subsection (4) and bear the cost of the technical, clerical and other help provided for in subsection (5).

             (7)  The chairperson and, in the absence of the chairperson, the vice-chairperson of the committee have the powers which may be conferred upon a commissioner under section 2 of the Public Inquiries Act and which a commissioner has under subsection 3(1) of that Act and subsections 3(2) and (3) of that Act apply to persons required to give evidence before the committee.

1983 c48 s114