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The Workers Compensation Amendment Act (2)

S.M. 1989-90, c. 47

Bill 56, 2nd Session, 34th Legislature

The Workers Compensation Amendment Act (2)

(Assented to March 15, 1990)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W200 amended

1           The Workers Compensation Act is amended by this Act.

Subsection 1(1) amended

2(1)        Subsection 1(1) is amended:

(a) in the definition of "accident",

(i) by striking out ", subject to subsection (12),";

(ii) by striking out "but also" and substituting "and".

(b) by repealing the definition of "child" and substituting the following:

"child" includes a child of a child, and a child to whom a worker stands in loco parentis; («enfant»)

(c) by repealing the definition "employer" and substituting the following:

"employer" includes

(a) a person

(i) who has in service under a contract for hiring or apprenticeship, written or oral, expressed or implied, a person engaged in work in or about an industry, or

(ii) who employs a person for more than 24 hours a week

(A) in domestic service,

(B) as a sitter to attend primarily to the needs of a child who is a member of the household, or

(C) as a companion to attend primarily to the needs of a child who is a member of the household,

(b) the Crown in right of the province, and municipal corporations, boards and commissions having the management and conduct of any work or service owned by or operated for a municipal corporation, or by or for the Government of Manitoba,

(c) a person that the board has determined under subsection 60(2.1) to be an employer for the purposes of Part I,

(d) the government, where a person is declared to be a worker under section 77,

(e) a trustee, receiver, liquidator, executor or administrator who carries on an industry,

(f) a person who authorizes or permits a learner to be in or about an industry for the purpose mentioned in the definition "learner"; («employeur»)

(d) in the definition of "member of the family", by striking out "wife, husband" and substituting "spouse";

(e) by striking out the definition "worker or workman" and substituting the following:

"worker" includes

(a) a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise,

(b) a learner,

(c) a casual emergency worker as defined in subsection (4),

(d) a person deemed to be a worker under subsection 60(2.1),

(e) an employer who is admitted by the board as being within the scope of Part I under subsection 74(3),

(f) an independent contractor who is admitted by the board as being within the scope of Part I under section 75,

(g) an executive officer of a corporation who is admitted by the board as being within the scope of Part I under subsection 74(3),

(h) a member of the family of an employer in respect of whom an application is made and approved under subsection 74(4),

(i) a person or a member of a class of persons declared to be a worker under section 77, and

(j) a person who is employed for more than 24 hours a week by the same employer

(i) in domestic service,

(ii) as a sitter to attend primarily to the needs of a child who is a member of the household, or

(iii) as a companion to attend primarily to the needs of a child who is a member of the household. («ouvrier»)

Subsection 1(1) further amended

2(2)        Subsection 1(1) is further amended by adding the following definitions in alphabetical order in the subsection:

"appeal commission" means the Appeal Commission appointed under section 60.2; («Commission d'appel»)

"appeal commissioner" means a person appointed as an appeal commissioner under section 60.2; («commissaire aux appels»)

"Board of Directors" means the Board of Directors appointed under section 50.2; («conseil d'administration»)

"medical aid" includes dental aid; («assistance médicale»)

"panel" means an appeal commission panel established under subsection 60.4(1); («comité»)

"spouse" means a person who, at the time of the death of the worker

(a) is married to the worker, or

(b) is not married to the worker, is a person of the opposite sex, and has cohabited with the worker

(i) for five years immediately preceding the death of the worker, or

(ii) for one year immediately preceding the death of the worker, and there is a child of the union; («conjoint»)

Subsection 1(2) repealed

2(3)        Subsection 1(2) is repealed.

Subsection 1(3) amended

2(4)        Subsection 1(3) is amended:

(a) by striking out "shall, for the purpose of Part I, be deemed not to include" and substituting "does not include:";

(b) by repealing clause (a) and substituting the following:

(a) an executive officer of a corporation, unless an application to have the executive officer brought within the scope of Part I is received and approved by the board;

(c) by striking out "or" at the end of clause (b);

(d) by repealing clause (c);

(e) by adding the following after clause (b):

(c) an outworker;

(d) a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business;

(e) a person who

(i) ordinarily resides outside Canada;

(ii) is employed in the cartage trucking industry by an employer whose principal place of business is outside Canada; and

(iii) is temporarily working in or passing through the province.

Subsections 1(4)-(10) rep. & sub.

2(5)        Subsections 1(4) to (10) are repealed and the following is substituted:

Definition of "casual emergency worker"

1(4)        In this section, "casual emergency worker" means

(a) a member of a municipal fire brigade who is available on a casual basis, with or without remuneration, to respond as needed to fire or emergency calls and whose membership in the municipal fire brigade has been approved either by the chief of the department, or by the municipal corporation or a duly authorized officer thereof;

(b) a person ordered under The Fires Prevention Act to assist in extinguishing a forest, brush, or grass fire;

(c) a person assisting in fighting a fire under the direction of a fire guardian, conservation officer, or the chief or head of a municipal fire department or fire brigade; or

(d) a member of a municipal or community ambulance service who is available on a casual basis, with or without remuneration, to respond as needed to emergency calls for ambulance services and whose membership in the ambulance service has been approved either by the chief officer of the ambulance service, or by the municipal corporation or a duly authorized officer thereof.

Deemed employer

1(5)        For the purposes of this Act, the employer of a casual emergency worker is deemed to be

(a) in the case of a casual emergency worker to whom clause (4)(a) or (d) applies, the municipal corporation;

(b) in the case of a casual emergency worker to whom clause (4)(b) applies, the provincial government;

(c) in the case of a casual emergency worker to whom clause (4)(c) applies, the provincial government or the municipal corporation, as the case may be.

Inclusion in powers & duties

1(6)        Where a municipal corporation is deemed under subsection (5) to be an employer, the employment is deemed to be included in the exercise and performance of the powers and duties of the corporation.

Period of employment

1(7)        Each period of employment of a casual emergency worker is deemed to begin and end as follows:

(a) in the case of a casual emergency worker to whom clause (4)(a) applies, from the time when the person receives a notification, by any means, of an alarm of a fire or emergency, including the time of travel to the fire station, fire scene or the site of the emergency where the person performs duties until, after being released from duty, the person returns home, to the place at which notification was received, to the person's place of regular employment, or to any place for treatment, refreshment or recreation;

(b) in the case of a casual emergency worker to whom clause (4)(b) or (c) applies, from the time when the person is ordered or permitted to so assist until the official in charge orders or permits the person to cease the assistance;

(c) in the case of a casual emergency worker to whom clause (4)(d) applies, from the time when the person receives a notification, by any means, of the need of ambulance services, including the time of travel to the place where the ambulance is stationed or the site of an emergency where ambulance services are required, until the person, following the provision of the ambulance services, leaves the ambulance at the place that it is usually stationed or, if the person has not been with the ambulance, until the person's services at the site of an emergency are no longer required.

Average earnings

1(8)        For the purposes of this Act, the average earnings of a casual emergency worker shall be calculated under subsection 77(3), with such modifications as the circumstances require.

Subsection 1(13) added

2(6)        Section 1 is amended by adding the following after subsection 1(12):

Temporary hiring out of employee

1(13)       Where the employer of a worker temporarily lets or hires the services of the worker to another person, the employer continues to be the employer of the worker for purposes of this Act, while the worker is working for the other person.

Clause 2(g) amended

3           Clause 2(g) is amended by adding "executive officers of corporations," after "workers,".

Subsections 4(6) and (10) to (12) repealed

4           Subsections 4(6) and (10) to (12) are repealed.

Subsection 9(6) repealed

5           Subsection 9(6) is repealed.

Section 12 rep. and sub.

6           Section 12 is repealed and the following is substituted:

Board to decide all claims

12          No action lies for the recovery of compensation under this Part; and all claims for compensation shall be heard and determined by the board.

Section 16 amended

7           Section 16 is amended by striking out "$50." and substituting "$5,000.".

Subsection 18(4) rep. & sub.

8           Subsection 18(4) is repealed and the following is substituted:

Offence and penalty

18(4)       An employer who fails to make a report required under this section is guilty of an offence and liable to a fine of not more than $5,000.; and in addition to any fine, the employer shall, where the board orders, pay to the board as a penalty an amount prescribed by regulation or by the board; and the payment of an amount to the board under this subsection may be enforced in the same manner as the payment of an assessment under this Act.

Section 20 repealed and substituted

9           Section 20 is repealed and the following is substituted:

Duty of attending professionals

20           Every physician, hospital, nurse, dentist, chiropractor, chiropodist, optometrist, physiotherapist, psychologist, occupational therapist or osteopath attending or consulting on an injury to a worker resulting from an accident in an industry within the scope of this Part shall

(a) provide reports in respect of the injury in the form required by the board; and

(b) give reasonable and necessary information, advice and assistance to the injured worker and the dependents of the worker in making application for compensation, including any certificates and reports that may be required by the board, without charge to the worker or the dependents of the worker.

Subsection 21(1) rep. & sub.

10          Subsection 21(1) is repealed and the following is substituted:

Worker to submit to examination

21(1)       If required by the board, a worker who applies for, or is receiving compensation shall submit to medical examination at a place reasonably convenient for the worker and fixed by the board.

Subsection 24(2) rep. and sub.

11(1)       Subsection 24(2) is repealed and the following is substituted:

Suspension of payment

24(2)       Where a claimant is confined to a prison the board may, after due investigation, withold or suspend the payment of compensation to the worker or other person receiving compensation for such period as the board considers advisable.

Subsection 24(3.1) added

11(2)       The following is added after subsection 24(3):

Payments to committee

24(3.1)     Where a worker or dependent who is entitled to benefits under this Part has a committee of her or his estate appointed under The Mental Health Act, the board shall pay the benefits to the committee.

Subsection 24(6) & section 25 rep.

12          Subsection 24(6) and section 25 are repealed.

Subsection 26(1) rep. and sub.

13          Subsection 26(1) is repealed and the following is substituted:

Payments to be made periodically

26(1)       Payments of compensation shall be made periodically at such times, and in such manner and form, as the board considers advisable; and, in the case of minors, payments may be made to such persons as, in the opinion of the board, are best qualified in the circumstances to administer the payments, whether or not the person to whom the payment is made is the legal guardian of the minor.

Subsection 27(1.1) added

14(1)       The following is added after subsection 27(1):

Emergency expenditures

27(1.1)     Where a worker dies or is hospitalized in critical or serious condition as the result of an accident, the board may reimburse members of the immediate family of the worker for reasonable expenses incurred as a result of the accident.

Subsection 27(11) rep. & sub.

14(2)       Subsection 27(11) is repealed and the following is substituted:

Fees for medical aid

27(11)      The fees or charges payable for medical aid and medical reports

(a) shall be fixed by the board; and

(b) shall not be more than the board considers reasonable and proper for service rendered to a worker;

and no action lies for an amount larger than is fixed by the board.

Subsection 28(1) amended

15(1)       Subsection 28(1) is amended:

(a) by repealing clauses (a) and (b) and substituting the following:

(a) where the sole dependents of the worker are a surviving spouse or surviving spouses, a monthly payment of $816. for life, which shall be apportioned among surviving spouses in accordance with subsection 47(2);

(b) where the dependents of the worker are a surviving spouse or surviving spouses and a child or children under the age of 18 years, a monthly payment to the spouse of $816. for life, which shall be apportioned among surviving spouses in accordance with subsection 47(2), and an additional $184. in respect of each child under the age of 18 years;

(b) in clause (c) and subclause (e)(i), by striking out "16 years" and substituting "18 years".

Subsection 28(2) amended

15(2)       Subsection 28(2) is amended by striking out clauses (a) to (c) and substituting the following:

(a) where there is a surviving dependent spouse or surviving dependent spouses, the monthly payment shall be $816., which shall be apportioned among surviving spouses in accordance with subsection 47(2);

(b) where there is a surviving dependent spouse or surviving dependent spouses, and one dependent child, the monthly payment shall be not less than than the total of $816., which shall be apportioned among surviving spouses in accordance with subsection 47(2), and any amount payable in respect of the child under clause (1)(b) or (e); and

(c) where there is a surviving dependent spouse or surviving dependent spouses and two or more dependent children, the monthly payment shall not be less than the total of $816., which shall be apportioned among surviving dependent spouses under subsection 47(2), and any amount payable under clause (1)(b) or (e) for the two eldest children of each surviving spouse in respect of whom compensation is payable under either of those clauses.

Subsections 28(3) & (4) amended

15(3)       Subsections 28(3) and (4) are amended by striking out "16 years" wherever it appears, and substituting "18 years".

Subsection 29(1) amended

16          Subsection 29(1) is amended by repealing the words that appear before clause (a), and substituting the following:

Where a worker who dies after December 31, 1973 as a result of an accident is survived by a dependent spouse or dependent spouses, the compensation, which shall be apportioned among dependent spouses under subsection 47(2), shall be the greater of

Section 29.1 added

17          The following is added after subsection 29(2):

Former spouse

29.1        For the purposes of sections 28, 29, 32 and 35, "spouse" includes a former spouse, where the worker was or would have been, if the worker had not died, required to provide maintenance to the spouse under a separation agreement or an order of a court.

Section 32 amended

18          Section 32 is amended by striking out "or, if there is no surviving spouse," and substituting "or apportion among surviving spouses or, if there is no surviving spouse, pay".

Section 33 repealed

19          Section 33 is repealed.

Subsection 35(1) amended

20          Subsection 35(1) is amended by striking out "Where the surviving spouse" and substituting "Where a surviving spouse".

Subsection 50(1) rep. & sub.

21          Subsection 50(1) is repealed and the following is substituted:

Board continued

50(1)       "The Workers Compensation Board" is hereby continued as a body corporate for the administration of this Part.

Sections 50.1 & 50.2 added

22          The following is added after subsection 50(4):

Board of Directors

Consultation regarding appointments

50.1        For the purpose of making appointments under subsections 50.2(1) and 60.2(1), the Lieutenant Governor in Council shall consult with

(a) persons on whom assessments are levied under this Part, regarding the appointment of persons representative of employers;

(b) workers in industries subject to this Part, regarding the appointment of persons representative of workers; and

(c) persons on whom assessments are levied under this Part and with workers in industries subject to this Part, regarding the appointment of persons representative of the public interest.

Board of Directors

50.2(1)     There shall be a Board of Directors of the board, to be appointed by the Lieutenant Governor in Council, consisting of

(a) a member who shall be chairperson;

(b) three members representative of workers, one of whom may be an appeal commissioner;

(c) three members representative of employers, one of whom may be an appeal commissioner; and

(d) three members representative of the public interest.

C.E.O. is non-voting member

50.2(2)     The chief executive officer appointed under subsection 59(1) is a member of the Board of Directors, but shall not vote on any matter.

Term of appointment

50.2(3)     A member of the Board of Directors appointed under subsection (1) shall be appointed for a fixed period not exceeding five years.

Remuneration

50.2(4)     The Lieutenant Governor in Council or his or her designate shall fix the remuneration of each member appointed under subsection (1), and the remuneration shall be paid from the accident fund.

Section 51 rep. & sub.

23          Section 51 is repealed and the following is substituted:

Absence of chairperson

51          By resolution of the Board of Directors, one of the members may act as chairperson during the temporary absence of the chairperson.

Section 51.1 added

24          The following is added after section 51:

Function of Board of Directors

51.1(1)     The Board of Directors shall

(a) approve and superintend the policies and direction of the board, including policies respecting compensation, rehabilitation, assessment, and appeal procedures;

(b) consider and approve operating and capital budgets of the board;

(c) plan for the future of the compensation system;

and may establish and give direction to committees that consist of members of the Board of Directors.

Establishment of policy committee

51.1(2)     The Board of Directors shall establish a policy committee composed of

(a) the chairperson of the Board of Directors, who shall be chairperson of the committee;

(b) the chief executive officer;

(c) equal numbers of members of the Board of Directors representative of workers, employers and the public interest, none of whom shall be an appeal commissioner.

Functions of policy committee

51.1(3)     The policy committee shall develop policy for the consideration of the Board of Directors.

Sections 52 to 54 repealed

25          Sections 52 to 54 are repealed.

Section 56 rep. & sub.

26          Section 56 is repealed and the following is substituted:

Conflict of interest

56          The Board of Directors shall pass a by-law

(a) to define circumstances that shall constitute conflict of interest for its members;

(b) to govern disclosure of conflicts of interest; and

(c) to provide rules and guidelines regarding participation and voting at meetings of the Board of Directors by a member who has a conflict of interest.

Section 57 rep. & sub.

27          Section 57 is repealed and the following is substituted:

Board offices

57          The offices of the board shall be situated in the City of Winnipeg, and meetings of the Board of Directors shall be held at the call of the chairperson at any place in Manitoba that the chairperson may decide.

Section 58 rep. & sub.

28          Section 58 is repealed and the following is substituted:

Board meetings

58(1)       The Board of Directors shall sit at least ten times in each year, and at such other times as may be necessary, and shall conduct its proceedings in such manner as it considers most convenient for the proper discharge of business.

Quorum

58(2)       A majority of the appointed members of the Board of Directors constitutes a quorum.

Vacancy

58(3)       When there is a vacancy on the Board of Directors, the remaining members may exercise the powers of the board.

Subsection 59(1) rep. & sub.

29          Subsection 59(1) is repealed and the following is substituted:

C.E.O. and other employees

59(1)       The Board of Directors shall appoint a person to be known as the Chief Executive Officer, and shall fix his or her salary and prescribe his or her duties, which shall include employing such persons as are necessary to carry out this Part, prescribing their duties and fixing their salaries; and the salaries shall be paid out of the accident fund.

Clause 60(2)(l) repealed

30(1)       Clause 60(2)(l) is repealed.

Subsection 60(2.1) added

30(2)        The following is added after subsection 60(2):

Deemed worker and employer

60(2.1)     Notwithstanding the other provisions of this Act, where a person who is not a worker under this Part performs work for the benefit of another person, the board may deem the first person to be a worker, and the second person to be the employer of the first person, within the meaning of this Act; and the board may determine an amount that shall be deemed to be the earnings of the first person, for the purpose of this Part.

Sections 60.1 to 60.10 added

31          The following is added after subsection 60(4):

Initial determination

60.1(1)     An application for compensation or other benefits and all matters relating to assessment under this Part shall be determined by the board.

Reconsideration by board

60.1(2)     On the written request of a person who has a direct interest in a decision made under subsection (1), the board shall reconsider its decision.

Procedure for reconsideration

60.1(3)     The procedure for reconsidering a decision shall be prescribed by regulation or by the board.

Reasons upon reconsideration

60.1(4)     Following reconsideration, the board may confirm, vary or reverse its decision and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons.

Appeal to appeal commission

60.1(5)     Following reconsideration, a person who has a direct interest in the matter may, in writing, appeal the decision to the appeal commission.

Establishment of appeal commission

60.2(1)     There is hereby established an appeal commission, to be known as the Appeal Commission, to be appointed by the Lieutenant Governor in Council, and consisting of

(a) one or more appeal commissioners representative of the public interest, one of whom shall be designated as Chief Appeal Commissioner;

(b) one or more appeal commissioners representative of workers;

(c) one or more appeal commissioners representative of employers.

Office held at pleasure

60.2(2)     The Chief Appeal Commissioner and the appeal commissioners hold office at the pleasure of the Lieutenant Governor in Council.

Ineligible persons

60.2(3)     Subject to subsection 50.2(1), no member of the Board of Directors or employee of the board is eligible to be an appeal commissioner.

Remuneration of appeal commissioners

60.2(4)     The Lieutenant Governor in Council, or his or her designate, shall fix the remuneration of the Chief Appeal Commissioner and each of the appeal commissioners, and the remuneration shall be paid from the accident fund.

Panels

60.3(1)     The Chief Appeal Commissioner shall establish one or more panels of the appeal commission, and each panel shall consist of

(a) one appeal commissioner appointed under clause 60.2(1)(a), who shall be the presiding officer of the panel;

(b) one appeal commissioner appointed under clause 60.2(1)(b);

(c) one appeal commissioner appointed under clause 60.2(1)(c).

Reference to panel

60.3(2)     The Chief Appeal Commissioner shall refer a matter that is before the appeal commission to a panel, or may at any time refer a matter that is before one panel to another panel.

Panel has authority of commission

60.3(3)     Where a reference is made to a panel, the panel has the power and authority of the appeal commission.

Sittings of commission or panel

60.3(4)     Sittings of a panel may be held at such times and places in Manitoba as the Chief Appeal Commissioner or his or her designate decides.

Quorum of panel

60.3(5)     Two members of a panel constitute a quorum of the panel.

Reference to new panel

60.3(6)     A decision of a panel is constituted by at least two votes concurring in result, and where there is no such decision, the Chief Appeal Commissioner shall refer the matter to a panel of three different commissioners to hear and decide the matter.

Decision of panel is that of board

60.3(7)      Subject to section 60.9, a decision of a panel is deemed to be a decision of the board.

Conflict of interest

60.4        An appeal commissioner shall not participate in the hearing of a matter in which he or she has a direct personal interest, or in which the chairperson of the Board of Directors determines that the appeal commissioner has an actual or apparent conflict of interest.

Responsibility to implement policies

60.5(1)     The Chief Appeal Commissioner and the appeal commissioners shall implement the policies of the Board of Directors with respect to the administration and conduct of the appeal commission.

C.A.C. may delegate

60.5(2)     The Chief Appeal Commissioner may delegate in writing any of his or her powers or duties to an appeal commissioner appointed under clause 60.2(1)(a), subject to any terms and conditions set out in the delegation.

Costs of commission

60.6        The operating costs of the appeal commission shall be paid by the board from the accident fund.

Practice and procedure

60.7        Subject to any policies, by-laws or resolutions of the Board of Directors, the Appeal Commission may determine the practice and procedure for the conduct of matters before it.

Jurisdiction of appeal commission

60.8(1)     Subject to section 60.9, the appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of

(a) appeals under subsection 60.1(5);

(b) determinations under subsection 68(4);

(c) any matter referred to it by the Board of Directors.

Powers of appeal commission

60.8(2)     The appeal commission has all the powers conferred on the board by sections 55 and 65, and subsections 60(1) and (2).

Further investigation

60.8(3)     The Chief Appeal Commissioner may at any time refer a matter to the board for further investigation.

Representations and new evidence

60.8(4)     In hearing a matter under subsection (1), the appeal commission shall give all parties who have a direct interest in the matter an opportunity to make representations, and may allow the presentation of new or additional evidence.

Decision on appeal

60.8(5)     On hearing an appeal, the appeal commission may confirm, vary or reverse the decision appealed from and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons.

Commission bound by board policies

60.8(6)     The appeal commission is bound by the policies of the Board of Directors.

Powers of Board of Directors

60.9        Where the Board of Directors considers that the appeal commission has not properly applied the Act, regulations or a policy of the Board of Directors, it may stay the decision of the appeal commission pending rehearing of the matter under this section and

(a) in writing, direct a panel of three different commissioners of the appeal commission to rehear the matter; or

(b) on written notice to all persons who have a direct interest in the matter, direct that the matter be reheard by the Board of Directors, or by a committee of the Board of Directors, in which case the Board of Directors or the committee has all the powers and authority of the appeal commission, and sections 60.4, 60.7 and 60.8 apply with such modifications as the circumstances require.

Reconsideration by appeal commission

60.10(1)    A person who is directly interested in a decision of the appeal commission may apply to the Chief Appeal Commissioner for an order directing reconsideration of the decision on the ground that new evidence has arisen or has been discovered since the hearing.

Nature of new evidence required

60.10(2)    The Chief Appeal Commissioner may direct the appeal commission to reconsider its previous decision where the Chief Appeal Commissioner considers that the evidence referred to in subsection (1) is substantial and material to the decision, and

(a) did not exist at the time of the previous hearing before the Appeal Commission, or

(b) was not known to the applicant at the time of the previous hearing before the appeal commission and could not have been discovered through the exercise of due diligence.

No general power of reconsideration

60.10(3)    Except as provided in this section, the appeal commission shall not reconsider any matter or rescind, alter or amend any decision or order previously made by it, or make any further or supplementary order.

Section 61 amended

32          Section 61 is amended by striking out "or any of its members or persons employed by it" and substituting the following:

a member of the Board of Directors, a person employed by the board, an appeal commissioner,

Section 62 rep. & sub.

33          Section 62 is repealed and the following is substituted:

Board and employees not to be witnesses

62          No member of the Board of Directors, employee of the board, appeal commissioner or worker adviser appointed under this Act shall be required to give testimony in a civil suit to which the board is not a party with regard to information obtained by him or her in the discharge of official duties in connection with the board.

Subsections 63(1) & (3), 64(1) & (4) amended

34          Subsections 63(1) and (3), 64(1) and (4) are amended by adding "physiotherapist, psychologist, occupational therapist" after "optometrist", wherever it appears.

Subsection 66(1) amended

35          Subsection 66(1) is amended by striking out "commissioner" and substituting "member of the Board of Directors".

Subsection 67(1) rep. & sub.

36(1)       Subsection 67(1) is repealed and the following is substituted:

Definitions

67(1)       In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion; («avis»)

"panel" means a medical review panel. («comité»)

Subsection 67(2) repealed

36(2)       Subsection 67(2) is repealed.

Subsections 67(11) to (13) amended

36(3)        Subsections 67(11) to (13) are amended by striking out "Manitoba Medical Association" wherever it appears, and substituting "College of Physicians and Surgeons".

Subsection 67(12.1) added

36(4)       The following is added after subsection 67(12):

Ineligible physicians

67(12.1)    A physician shall not be selected to act, and shall not serve, on a medical review panel where the physician

(a) has examined or treated the worker;

(b) examines workers on behalf of the employer; or

(c) has acted as a consultant in the treatment of the worker.

Board to select in certain cases

67(12.2)    Where a worker is

(a) self employed;

(b) a member of the family of the employer; or

(c) a partner in, or a member of, the firm that is the employer;

or where the employer ceases to carry on business in the industry in which the injury occurred, the board shall exercise the employer's choice under subsection (11), as if it were the employer.

Subsections 67(15) and (18) repealed

36(5)       Subsections 67(15) and (18) are repealed.

Subsection 68(3) amended

37(1)       Subsection 68(3) is amended by striking out "$50." and substituting "$5,000."

Subsection 68(4) rep. and sub.

37(2)       Subsection 68(4) is repealed and the following is substituted:

Board to determine right of action

68(4)       Where an action in respect of an injury is brought against an employer or a worker of an employer by a worker or the legal personal representative or a dependant of the worker, the board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the board determines that the right of action is removed by this Act, the action shall be forever stayed.

Section 68.1 added

38          The following is added after section 68:

Certified document is evidence

68.1        A document shall be admissible as evidence without further proof as to its substance where it is certified under the seal of the board to be a true copy, and purports to be signed by the secretary, the chief executive officer or such other officer as the board may authorize by resolution, and sets out the substance of an order, ruling or decision of the board, or information from a book, record, document or file of the board in the form of an extract or description.

Subsection 74(2) repealed

39(1)       Subsection 74(2) is repealed.

Subsection 74(3) amended

39(2)       Subsection 74(3) is amended

(a) by adding "or executive officer of a corporation" after "Any employer";

(b) by adding "or executive officer" after "if the employer".

Subsection 74(4) amended

39(3)       Subsection 74(4) is amended by adding "an executive officer of a corporation," after "accident fund to".

Subsection 74(4) amended

39(3)       Subsection 74(4) is amended by adding "an executive officer of a corporation," after "accident fund to".

Subsection 77(1) rep. and sub.

40(1)       Subsection 77(1) is repealed and the following is substituted:

Determining persons as workers

77(1)       The Lieutenant Governor in Council may by regulation declare any persons or class of persons to be workers in the employment of the government and governed by the terms of this Act, and subsection (3) shall apply unless the regulation otherwise provides.

Subsection 77(1.1) added

40(2)       The following is added after subsection 77(1):

Regulation may be retroactive

77(1.1)     Notwithstanding The Regulations Act, a regulation made under subsection (1) may be made with retroactive effect to any date, and is valid against all persons as of such date.

Subsections 77(3) & (4) rep. and sub.

40(3)       Subsections 77(3) and (4) are repealed and the following is substituted:

Average earnings calculation

77(3)       For the purpose of calculating compensation under this Part for a person who is declared under subsection (1) to be a worker, the person's average earnings shall be the greater of the following:

(a) the person's average earnings from the employment in respect of which the person is declared to be a worker under subsection (1);

(b) the person's average earnings from other regular employment, whether or not within an industry within the scope of this Part;

(c) the person's average earnings from all employment within the scope of this Part; and

(d) the person's deemed earnings, which shall be calculated as follows:

(i) in the case of temporary disability, an amount equivalent to steady employment at the minimum wage rate then in effect under the laws of Manitoba, or

(ii) in the case of permanent total disability, permanent partial disability or death, an amount equivalent to steady employment with the average weekly earnings of workers in Manitoba as last published by Statistics Canada before the date of the accident, and referred to as the "Industrial Composite Average Weekly Earnings (Revised)" for Manitoba or, where no such figures are published within a reasonable period before the date of the accident, an amount equivalent to the average weekly earnings of workers in Manitoba, as determined by the board and approved by the minister.

Rights under this Act in lieu of other rights

77(4)       Where a person is declared to be a worker, or is within a class of persons that are declared to be workers, under subsection (1), the word "employer" in subsections 9(1), 9(7), 9(8) and 13(1) means both the government and the person for whom the work is performed.

Subsection 80(5) rep. and sub.

41(1)       Subsection 80(5) is repealed and the following is substituted:

Offence and penalty

80(5)       A person who does not comply with subsections (1), (2) or (3) is guilty of an offence and is liable, for each non-compliance, to a fine not exceeding $5,000.

Subsection 80(6) rep. & sub.

41(2)       Subsection 80(6) is repealed and the following is substituted:

Board may estimate assessment

80(6)       Where

(a) an employer does not furnish the board with the prescribed statement within the prescribed time; or

(b) the statement referred to in clause (a) does not, in the board's opinion, reflect the probable amount of the payroll of the employer or correctly describe the nature of the different classes of work carried on;

the board may base an assessment or supplementary assessment on a sum that in its opinion is the probable amount of payroll or the correct nature of the different classes of work carried on, and the employer is bound thereby.

Interest on under-assessment

80(6.1)     Where an estimate of probable payroll by an employer, or by the board under subsection (6), is less than the actual amount of the payroll determined at the end of the calendar year, the employer is liable to pay to the board the difference between the amount that the employer was assessed, and the amount that the employer is assessed on the basis of actual payroll, together with interest thereon at a rate and on terms prescribed by regulation or by the board from the date the sum would otherwise have been payable to the date of payment; and payment of the difference and the interest may be enforced in the same manner as the payment of an assessment.

Interest on over-assessment

80(6.2)     Where an estimate of probable payroll by an employer, or by the board under subsection (6), is more than the actual amount of payroll determined at the end of the calendar year, the board shall refund or, in its discretion, credit the employer with the difference between the amount that the employer was assessed, and the amount that the employer is assessed on the basis of the actual payroll, together with interest thereon at a rate and on terms prescribed by regulation or by the board from the date the assessment is paid in full to the date of refund or credit.

Subsection 81(2.1) added

42          Section 81 is amended by adding the following after subsection 81(2):

Reinsurance against disaster

81(2.1)     The board may reinsure with an insurer against the risk, or a portion of the risk, of losses arising from a catastrophe, disaster or other like circumstance that may, in the opinion of the board, significantly burden the accident fund.

Section 81.1 added

43          The following is added after subsection 81(8):

Certificate required on bulk sale

81.1(1)     Where an employer disposes of stock by a sale in bulk, as those terms are defined in The Bulk Sales Act, the employer shall obtain a certificate in duplicate from the board stating that it has no claim under this Act against the employer, or that the board has a claim and the employer has made arrangements for payment of it; and the employer shall deliver one copy of the certificate to the purchaser of the stock.

Effect on purchaser of no certificate

81.1(2)     Where a person who purchases stock by a sale in bulk fails to obtain a copy of the certificate referred to in subsection (1), the person is jointly and severally liable, with the vendor of the stock, for any amount owing to the board under this Act by the vendor; and the purchaser has a right of action against the vendor for any amount that the purchaser is required to pay to the board under this section.

Subsection 83(2) amended

44          Subsection 83(2) is amended by striking out "$500." and substituting "$5,000."

Subsection 85(2) amended

45          Subsection 85(2) is amended by striking out "or a copy of it, certified by the secretary under the seal of the board to be a true copy," and substituting the following:

certified under the seal of the board to be a true copy, and purporting to be signed by the secretary, the chief executive officer or such other officer as the board may authorize by resolution,

Section 85.1 added

46          The following is added after section 85:

Prohibition from carrying on business

85.1        Where an employer defaults in the payment of an assessment or any part of it and

(a) an execution issued on a judgment entered with respect to the unpaid assessment is returned with a certificate from a sheriff or bailiff stating that the execution is not wholly satisfied; and

(b) the employer continues to carry on a business in an industry to which this Act applies;

a judge of the Court of Queen's Bench may, on application made on behalf of the board, restrain the employer from carrying on business in an industry to which this Act applies until the unpaid assessment and the costs of the application are paid.

Subsections 86(1) & (2) rep. & sub.

47(1)       Subsections 86(1) & (2) are repealed and the following is substituted:

Penalty for failure to make returns

86(1)       Where

(a) an employer refuses or neglects to furnish the board, within the prescribed time, with a payroll return or other statement required under subsections 80(1), (2) and (3); or

(b) the statement referred to in clause (a) does not, in the opinion of the board, based on an audit of the employer, reasonably reflect the probable amount of the payroll of the employer or correctly describe the nature of the different classes of work carried on;

the employer shall pay to the board as a penalty an amount prescribed by regulation or by the board, and the payment of the amount may be enforced in the same manner as the payment of an assessment.

Penalty for failure to pay assessment

86(2)       An employer who refuses or neglects to pay an assessment or the provisional amount of an assessment, or an instalment or part of an instalment, is liable to and shall pay to the board interest on the amount unpaid, at a rate and on terms prescribed by regulation or by the board; and the interest shall be added to the amount of the assessment and become part of it, and payment may be enforced in the same manner as the payment of any other assessment made by the board.

Subsection 86(4) repealed

47(2)       Subsection 86(4) is repealed.

Section 91 repealed

48          Section 91 is repealed.

Subsections 92(1) & (2) rep. & sub.

49          Subsections 92(1) and (2) are repealed and the following is substituted:

Additional industries added

92(1)       The board may by regulation include within the application of this Part any industry excluded under the Schedule established under section 73.

Exclusion of industries

92(2)       The board may, by regulation, exclude any industry from the application of this Part; but no industry shall be excluded from this Part, except upon such terms and conditions as the board may impose.

Subsection 94(13) rep. & sub.

50(1)       Subsection 94(13) is repealed and the following is substituted:

Real estate and buildings

94(13)      Subject to the approval of the Lieutenant Governor in Council, the board may

(a) purchase or otherwise acquire real property, as it considers necessary for its purposes;

(b) erect buildings on the real property, as it considers necessary for its purposes; and

(c) sell or otherwise dispose of any such real estate or buildings.

Subsection 94(15) rep. & sub.

50(2)       Subsection 94(15) is repealed and the following is substituted:

Expenditures and repayments

94(15)      Expenditures incurred under subsection (13) shall be paid from any reserve fund or other special fund that is part of the accident fund, and the expenditures shall be repaid in 30 equal annual payments, which shall include principal and interest at rates of interest that, in the opinion of the board, reflect current rates; and the repaid moneys shall be placed to the credit of the fund from which the expenditures are made.

Subsection 94(16) amended

50(3)       Subsection 94(16) is amended:

(a) by striking out the heading and substituting "Repayments as administration expenses";

(b) by striking out "shall be" and substituting "are".

Subsection 94(17) rep. & sub.

50(4)       Subsection 94(17) is repealed and the following is substituted:

Land and buildings an investment

94(17)      Real property acquired or buildings erected by the board shall, until repayment of the amount expended for them is made, be deemed to be an investment made on behalf of the reserve fund or special fund from which the amount is paid.

Clause 95(2)(a) rep. & sub.

51          Clause 95(2)(a) is repealed and the following is substituted:

(a) the chairperson of the board, or a person designated by the chairperson, who is the chairperson of the committee;

Section 97.1 added

52          The following is added after section 97:

Research and safety programs

97.1(1)     The board may conduct research and safety programs on accident prevention, safety in the workplace, and treatment of workplace injuries, and on scientific, medical or other issues relating to workers compensation, and for that purpose the board may make such expenditures from the accident fund as it considers necessary or expedient.

Allocation of cost

97.1(2)     The board may charge expenditures made under subsection (1) against the class or subclass to which a research or educational program relates and levy the expenditure as part of the assessment against that class or subclass.

Subsection 98(1) amended

53(1)       Subsection 98(1) is amended by striking out "and furnish" and substituting "and shall forthwith comply with section 80 by furnishing".

Subsection 98(2) amended

53(2)       Subsection 98(2) is amended by striking out "$500." and substituting "$5,000."

Subsections 99(1) to (4) rep. and sub.

54          Subsections 99(1) to (4) are repealed and the following is substituted:

Definition of "employer"

99(1)       In this section and in section 100, "employer" includes a person who, in the opinion of the board, may be an employer.

Examination of books of employer

99(2)       The board, and an officer or person authorized by it for that purpose, may examine the books and accounts of an employer, and make such other inquiry as the board considers necessary for the purpose of determining

(a) whether any statement furnished to the board is an accurate statement of the matters that are required to be stated in it;

(b) the amount of the payroll of an employer; or

(c) whether an industry or person is under the operation of this Part;

and for the purpose of such an examination and inquiry, the board and the person so authorized by the board has, in addition to the powers conferred by this Act, the powers, protection and privileges of a commissioner under Part V of The Manitoba Evidence Act.

Notice to employer

99(3)       The board or a person authorized to make an examination or inquiry under this section may give to the employer or an agent of the employer notice in writing requiring the employer or agent to produce to the board or person, at a place and time mentioned in the notice, which shall be not less than 10 days after the giving of the notice, all documents and books in the possession, custody or power, of the employer or agent, in any way relating to or concerning the subject matter of the examination or inquiry; and a person named in and served with any such notice shall produce, at the time and place required, all such documents and books.

Subsections 100(1) & (2) rep. and sub.

55          Subsections 100(1) and (2) are repealed and the following is substituted:

Right of entry

100(1)      The board, and any officer or person authorized by it for that purpose may, at all reasonable times, enter into the establishment of an employer, and any premises connected with it, for a purpose set out in subsection 99(2), or for the purpose of inspecting the site of an accident or interviewing witnesses to an accident.

Removal of document or thing

100(2)      A person making entry under subsection (1) may, after providing a receipt to the employer or posting a receipt in a prominent place on the premises of the employer, remove from the premises any document or thing relating to the examination or inquiry, make copies or take photographs of a document or thing removed, and forthwith return it to the place from which it is taken.

Application to court

100(3)      Where an employer or any other person fails to comply with a notice under subsection 99(3) or refuses entry to a person authorized under subsection (1), or where the board has reasonable grounds to believe that an employer will not comply with a notice under subsection 99(3) or permit entry to a person authorized under subsection (1), the board may apply to the Court of Queen's Bench, without notice to the employer or any other person, for an order requiring the employer and any other person to comply with the notice or to permit the entry.

Penalty

100(4)      A person who obstructs or hinders the making of an examination and inquiry under section 99 or of an inspection under subsection (1), or who refuses to permit an inspection to be made, is guilty of an offence and is liable to a fine not exceeding $5,000.

Subsection 101(1) amended

56(1)       Subsection 101(1) is amended by adding ", no member of any committee, panel, medical review panel or commission appointed under this Part," after "section 108".

Subsection 101(7) amended

56(2)       Subsection 101(7) is amended by striking out "$500." and substituting "$5,000."

Section 102 repealed

57          Section 102 is repealed.

Section 103 amended

58          Section 103 is amended by striking out "$50." and substituting "$5,000."

Subsections 105(2) & (3) rep.

59          Subsections 105(2) and (3) are repealed.

Subsection 105(4) amended

60          Subsection 105(4) is amended by striking out "before working for the aforesaid periods".

Subsections 105(6) & (7) repealed

61          Subsections 105(6) and (7) are repealed.

Subsection 105(10) repealed

62          Subsection 105(10) is repealed.

Section 107 repealed

63          Section 107 is repealed.

Section 109.1 added

64          The following is added after section 109:

Offence and penalty

109.1(1)    A person who

(a) knowingly makes a false statement to the board affecting the person's entitlement to compensation;

(b) deliberately fails to inform the board of a material change in circumstances affecting the person's entitlement to compensation, within 10 days of the commencement of the change;

(c) knowingly makes a false statement to the board concerning an employer's report of payroll, or affecting the assessment of an employer; or

(d) knowingly makes a false statement to the board affecting a worker's entitlement to compensation;

is guilty of an offence and is liable

(e) where the person is a worker, to a fine not exceeding $1,000. or to imprisonment not exceeding three months, or both; and

(f) where the person is an employer, to a fine not exceeding $5,000. or to imprisonment not exceeding three months, or both.

Restitution

109.1(2)    A justice who finds a person guilty of an offence under clause (1)(a) or (b) may, in addition to any penalty imposed under subsection (1), order the person to repay to the board any monies obtained by that person by reason of the commission of the offence.

Filing of order in court

109.1(3)    Where monies are ordered to be paid under subsection (2), the board may file a certified copy of the order in the Court of Queen's Bench, and thereupon the order shall be deemed to be a judgment of the court in favour of the board, and may be enforced as such.

Limitation on prosecution

109.1(4)    Notwithstanding The Summary Convictions Act, a prosecution under this section shall not be initiated more than four years after the date of the occurrence of the alleged offence.

Rights not affected by prosecution

109.1(5)    Nothing in this section limits the right of the board to take proceedings to obtain a civil remedy, including proceedings under section 109.2.

Recovery of overpayments

109.2       Where a person receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the board may recover the overpayment from the person, or from the executors or administrators of the person, as a debt due to the board.

Right of set off

109.3       Notwithstanding section 23 and without limiting the board's remedies for recovery, any money due the board under this Act may be set off against compensation that is or may become payable to the person who is indebted to the board.

Section 114 repealed

65          Section 114 is repealed.

Section 115 amended

66          Section 115 is amended by striking out "Minister of Labour" and substituting "minister".

Accidents to which this Act applies

67          The following provisions of the Act, as amended by this Act, apply only with respect to accidents that occur on or after the day that this Act comes into force:

(a) sections 28, 29.1 and 32;

(b) the definition of "spouse" in subsection 1(1), and subsections 1(8), 29(1), 35(1), 77(3) and (4).

CONSEQUENTIAL AMENDMENTS TO THE CRIMINAL INJURIES COMPENSATION ACT

C.C.S.M. c. C305 subs. 1(2) amended

68(1)       Subsection 1(2) of The Criminal Injuries Compensation Act is amended:

(a) in clause (a), by striking out "during the entire period of three years" and substituting "during the five years";

(b) in clause (b), by striking out "during the entire period of one year" and substituting "for one year".

Amendments affect offences from proclamation date

68(2)       The amendments to subsection 1(2) of The Criminal Injuries Compensation Act under subsection (1) apply only with respect to a criminal offence that occurs on or after the day that this Act comes into force.

Subsection 26(1) rep. and sub.

68(3)       Subsection 26(1) of The Criminal Injuries Compensation Act is repealed and the following is substituted:

Definition of "opinion" & "panel"

26(1)       In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion; («opinion»)

"panel" means a medical review panel. («comité»)

Subsection 26(7) amended

68(4)       Subsection 26(7) of The Criminal Injuries Compensation Act is amended by striking out "the Manitoba Medical Association and that Association" and substituting "the College of Physicians and Surgeons and the College".

Subsection 26(8) repealed

68(5)       Subsection 26(8) of The Criminal Injuries Compensation Act is repealed.

COMING INTO FORCE

Coming into force

69          This Act comes into force on a day fixed by proclamation.