Acts and Regulations

2016, c.48 - An Act to Amend the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act

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2016, c.48
An Act to Amend the
Workplace Health, Safety and
Compensation Commission and
Workers’ Compensation Appeals Tribunal Act
Assented to December 16, 2016
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1Section 7 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, chapter W-14 of the Acts of New Brunswick, 1994, is amended
(a) in paragraph (g) by striking out “and” at the end of the paragraph;
(b) in paragraph (h) by striking out the period at the end of the paragraph and substituting a semi-colon;
(c) by adding after paragraph (h) the following:
(i) prepare and approve its operating and capital budgets;
(j) plan for the future of the workers’ compensation system; and
(k) develop a prevention strategy with respect to workplace injury and illness.
2Section 8 of the Act is amended by adding after subsection (1) the following:
8(1.01)A person may not be appointed as a member of the board of directors unless the person is a resident of New Brunswick.
3Section 9 of the Act is amended
(a) in subsection (1) by striking out “four years” and substituting “five years”;
(b) by repealing subsection (1.1);
(c) in subsection (2) by striking out “four years” and substituting “five years”;
(d) in subsection (3) of the French version by striking out “vice-président de conseil d’administration” and substituting “vice-président du conseil d’administration”;
(e) by repealing subsection (5) and substituting the following:
9(5)Subject to subsection (7.1), the members of the board of directors are eligible for reappointment for two additional terms of three years each.
(f) by repealing subsection (6) and substituting the following:
9(6) The appointment of any member of the board of directors may be terminated by the Lieutenant-Governor in Council before the expiry of the member’s term
(a) for cause, including, but not limited to, a breach of the provisions of section 11 or section 12, on the recommendation of the board of directors to the Minister,
(b) if the member ceases to be a resident of New Brunswick, or
(c) in the case of a member representing workers or employers, when that member, in the opinion of the Lieutenant-Governor in Council, ceases to be representative of workers or employers, as the case may be.
(g) in subsection (7.1) by striking out “two additional terms” and substituting “three additional terms”;
(h) by repealing subsection (8);
(i) by adding before subsection (9) the following:
9(8.1)Unless his or her appointment is terminated, a member of the board of directors shall remain in office, despite the expiry of the member’s term, until the member resigns or is reappointed or replaced.
4Section 16 of the Act is amended
(a) by repealing subsection (1) and substituting the following:
16(1)The Commission, the President and Chief Executive Officer of the Commission or the Chairperson of the Appeals Tribunal may delegate any of his or her powers, duties, authority or discretion under this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, to one or more persons in the manner and subject to the terms and conditions the Commission, the President and Chief Executive Officer or the Chairperson of the Appeals Tribunal, as the case may be, considers appropriate.
(b) by repealing subsection (3) and substituting the following:
16(3)A decision, order or ruling of a person to whom a delegation has been made under subsection (1) or of a person to whom a subdelegation has been made under subsection (2) shall be deemed to be a decision, order or ruling of the Commission, the President and Chief Executive Officer of the Commission or the Chairperson of the Appeals Tribunal, as the case may be.
5Subsection 19(4) of the Act is amended
(a) in paragraph (c) by striking out “April” and substituting “June”;
(b) in paragraph (c.1) by striking out “April” and substituting “June”.
6Section 21 of the Act is amended
(a) by repealing subsection (6) and substituting the following:
21(6)If the Chairperson of the Appeals Tribunal chooses a panel of two or more members to hear an appeal under subsection (4.1), a decision of the majority of the members of the panel is the decision of the Appeals Tribunal.
(b) in subsection (12.1) by striking out “Unless the Appeals Tribunal otherwise determines” and substituting “Unless the Appeals Tribunal otherwise determines or the Commission applies to the Appeals Tribunal for a statement of facts under subsection 23(1) and, within 30 days after receiving the statement of facts, commences an appeal under subsection 23(4)”.
7The heading “Reconsideration” preceding section 22 of the Act is repealed and the following is substituted:
Reconsideration by the Commission
8Section 22 of the Act is amended
(a) by repealing subsection (1) and substituting the following:
22(1)The Commission may reconsider a decision, order or ruling it previously made or rescind, alter or amend the decision, order or ruling if
(a) the Commission is satisfied that new evidence has become available or has been discovered that is substantial and material to the decision, order or ruling, and the evidence
(i) did not exist at the time of the hearing before the Commission, or
(ii) did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered, and
(b) the Appeals Tribunal has not issued a written decision on the matter.
(b) by repealing subsection (2);
(c) by repealing subsection (3) and substituting the following:
22(3)Subsection 21(1) applies in respect of any decision, order or ruling under subsection (1).
9The Act is amended by adding after section 22 the following:
Reconsideration by the Appeals Tribunal
22.1(1)The Appeals Tribunal may reconsider a decision, order or ruling it previously made or rescind, alter or amend the decision, order or ruling if it is satisfied that new evidence has become available or has been discovered that is substantial and material to the decision, order or ruling, and the evidence
(a) did not exist at the time of the hearing before the Appeals Tribunal, or
(b) did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.
22.1(2)Any decision, order or ruling under subsection (1) shall be final, subject only to an appeal to the Court of Appeal involving any question as to jurisdiction or any question of law, and section 23 applies with the necessary modifications.
10Section 23 of the Act is amended
(a) by repealing subsection (5) and substituting the following:
23(5)Within 15 days after a Notice of Appeal is issued, an appellant shall serve a copy of the Notice of Appeal in the manner in which personal service may be made under the Rules of Court on the Commission and the Appeals Tribunal.
(b) by repealing paragraph (7)(b) and substituting the following:
(b) appeal a decision of the Appeals Tribunal to the Court of Appeal on any question that is a question as to the interpretation or application of this Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act, the Occupational Health and Safety Act or a policy approved by the Commission, whether or not the Commission presented evidence or made representations concerning that question in the appeal to the Appeals Tribunal.
11The Act is amended by adding after section 24 the following:
Agreements
24.01The Commission may enter into agreements with one or more provincial or territorial governments, the Government of Canada or their agencies for the purposes of the Commission collecting, investing and managing funds, and the funds shall form part of the Accident Fund but shall be maintained separately.
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT
Definitions
12The following definitions apply in sections 13 to 16:
“Appeals Tribunal” means the Workers’ Compensation Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act. (Tribunal d’appel)
“Commission” means the Workplace Health, Safety and Compensation Commission established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act. (Commission)
Appeal by Commission to Court of Appeal
13(1)Within 30 days after the commencement of this Act, the Commission may, for the purposes of appealing to the Court of Appeal, apply to the Appeals Tribunal for a statement of the facts considered by the Appeals Tribunal and of the grounds taken by the Appeals Tribunal in making any decision, order or ruling on or after April 1, 2015, and before the commencement of this Act determining that a policy approved by the Commission is inconsistent with the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, and section 23 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act applies with the necessary modifications.
13(2)Any decision of the Court of Appeal concerning the appeal of a decision, order or ruling referred to in subsection (1), including a decision determining that the policy on which the appeal is based is consistent with the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, the Workers’ Compensation Act, the Firefighters’ Compensation Act or the Occupational Health and Safety Act, shall have no effect on the amount of compensation, pension or benefits awarded or paid by the Commission to a worker as a result of the decision, order or ruling of the Appeals Tribunal, and the Commission has no right to recover the amounts from the worker.
Ratification of pensions
14(1)Any pension calculated and paid by the Workers’ Compensation Board of New Brunswick under the Workers’ Compensation Act on or before December 31, 1994, shall be deemed to have been validly calculated and paid and is confirmed and ratified.
14(2)Any pension calculated and paid by the Commission under the Workers’ Compensation Act on or before November 20, 2015, shall be deemed to have been validly calculated and paid and is confirmed and ratified.
14(3)Any pension calculated and paid by the Commission under the Firefighters’ Compensation Act on or before November 20, 2015, shall be deemed to have been validly calculated and paid and is confirmed and ratified.
Ratification of agreement and acts and things done with respect to agreement
15(1)The Investment Counsel Agreement entered into on November 16, 1994, between the Workers’ Compensation Board of New Brunswick and the Workers’ Compensation Board of Prince Edward Island, and effective on January 1, 1995, and any amendments to or restatements of the Investment Counsel Agreement by the Commission, shall be deemed to have been validly entered into and are confirmed and ratified.
15(2)Any funds collected, invested or managed under the agreement referred to in subsection (1) by the Commission on or after January 1, 1995, and before the commencement of this Act shall be deemed to have been validly collected, invested and managed and are confirmed and ratified.
15(3)Any investment management fee collected under the agreement referred to in subsection (1) by the Commission on or after January 1, 1995, and before the date of commencement of this Act shall be deemed to have been validly collected and is confirmed and ratified.
15(4)Any act or thing done to carry out the terms of the agreement referred to in subsection (1) by the Commission on or after January 1, 1995, and before the commencement of this Act shall be deemed to have been validly done and is confirmed and ratified.
Immunity
16(1)No action, application or other proceeding to question or in which is questioned the validity of a pension referred to in subsection 14(1), (2) or (3) or the calculation of the pension lies or shall be instituted against any of the following persons in relation to anything done or purported to be done in good faith or in relation to anything omitted in good faith by the person:
(a) a former President and Chief Executive Officer of the Workers’ Compensation Board of New Brunswick;
(b) a former Chairperson of the board of directors of the Workers’ Compensation Board of New Brunswick;
(c) any other former member of the board of directors of the Workers’ Compensation Board of New Brunswick;
(d) the Commission;
(e) the President and Chief Executive Officer or a former President and Chief Executive Officer of the Commission;
(f) the Chairperson or former Chairperson of the board of directors of the Commission;
(g) any other member or former member of the board of directors of the Commission;
(h) the Minister of Post-Secondary Education, Training and Labour;
(i) the Crown in Right of the Province; and
(j) any person appointed, assigned, designated or requested to assist the Workers’ Compensation Board of New Brunswick or the Commission with respect to the pension.
16(2)No action, application or other proceeding to question or in which is questioned the validity of the agreement referred to in subsection 15(1), the collection, investment or management of funds or the collection of investment management fees by the Commission in accordance with the agreement, the authority of the Workers’ Compensation Board of New Brunswick to enter into the agreement or the authority of the Commission to amend or restate the agreement, to collect, invest or manage funds or to collect investment management fees in accordance with the agreement lies or shall be instituted against any of the following persons in relation to anything done or purported to be done in good faith or in relation to anything omitted in good faith by the person:
(a) a former President and Chief Executive Officer of the Workers’ Compensation Board of New Brunswick;
(b) a former Chairperson of the board of directors of the Workers’ Compensation Board of New Brunswick;
(c) any other former member of the board of directors of the Workers’ Compensation Board of New Brunswick;
(d) the Commission;
(e) the President and Chief Executive Officer or a former President and Chief Executive Officer of the Commission;
(f) the Chairperson or former Chairperson of the board of directors of the Commission;
(g) any other member or former member of the board of directors of the Commission;
(h) the Minister of Post-Secondary Education, Training and Labour;
(i) the Crown in Right of the Province; and
(j) any person appointed, assigned, designated or requested to assist the Workers’ Compensation Board of New Brunswick or the Commission with respect to the agreement.
16(3)No action, application or other proceeding to question or in which is questioned the validity of the actions or things done or omitted to be done in relation to the agreement referred to in subsection 15(1) by the Commission lies or shall be instituted against any of the following persons in relation to anything done or purported to be done in good faith or in relation to anything omitted in good faith by the person:
(a) the Commission;
(b) the President and Chief Executive Officer or a former President and Chief Executive Officer of the Commission;
(c) the Chairperson or former Chairperson of the board of directors of the Commission;
(d) any other member or former member of the board of directors of the Commission;
(e) the Minister of Post-Secondary Education, Training and Labour;
(f) the Crown in Right of the Province; and
(g) any person appointed, assigned, designated or requested to assist the Commission with respect to the agreement.
Firefighters’ Compensation Act
17The Firefighters’ Compensation Act, chapter F-12.5 of the Acts of New Brunswick, 2009, is amended
(a) in section 19
(i) in subsection (1) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(ii) in subsection (3) by striking out “Interest shall be assumed to have been paid quarterly on the amount credited to each firefighter or former firefighter’s account in the Firefighters’ Pension Fund and the rate of interest payable” and substituting “The rate of return, whether positive or negative, shall be assumed to have been applied quarterly to the amount credited to each firefighter’s or former firefighter’s account in the Firefighters’ Pension Fund and the rate of return, whether positive or negative,”;
(iii) in subsection (6) by striking out “accumulated capital and interest” and substituting “ accumulated capital and the return, whether positive or negative, on the accumulated capital”;
(iv) in subsection (7) by striking out “together with accrued interest” and substituting “together with the return, whether positive or negative, on the amount”;
(b) in section 26
(i) in subsection (1) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(ii) in subsection (2) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(iii) in subsection (8) by striking out “accumulated capital and interest” and substituting “accumulated capital and the return, whether positive or negative, on the accumulated capital”;
(iv) in subsection (9) by striking out “together with accrued interest” and substituting “together with the return, whether positive or negative, on the amount”.
Regulation 2009-72 under the Firefighters’ Compensation Act
18 Section 8 of New Brunswick Regulation 2009-72 under the Firefighters’ Compensation Act is amended
(a) in paragraph (2)(e) by striking out “interest” and substituting “the return, whether positive or negative,”;
(b) in subsection (3) in the portion preceding paragraph (a) by striking out “accumulated capital and interest” and substituting “accumulated capital and the return, whether positive or negative, on the accumulated capital”.
Workers’ Compensation Act
19The Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended
(a) in section 38.22
(i) in subsection (1) by striking out “the interest that accrues on that amount” and substituting “the rate of return, whether positive or negative, that applies to that amount”;
(ii) in subsection (1.2) by striking out “plus interest accrued at the rate prescribed in subsection (9)” and substituting “plus the rate of return, whether positive or negative, applied at the rate prescribed in subsection (9)”;
(iii) in subsection (2) by striking out “the interest that accrues on that amount” and substituting “the rate of return, whether positive or negative, that applies to that amount”;
(iv) in subsection (2.2) by striking out “plus interest accrued at the rate prescribed in subsection (9)” and substituting “plus the rate of return, whether positive or negative, applied at the rate prescribed in subsection (9)”;
(v) in subsection (4) by striking out “plus interest set aside” and substituting “plus the rate of return, whether positive or negative, applied to that amount”;
(vi) in paragraph (8)(b) by striking out “interest had been paid” and substituting “the rate of return, whether positive or negative, had been applied”;
(vii) in subsection (9) by striking out “Interest shall be assumed to have been paid quarterly on the amount credited to each worker’s account in the Pension Fund and the rate of interest payable” and substituting “The rate of return, whether positive or negative, shall be assumed to have been applied quarterly to the amount credited to each worker’s account in the Pension Fund and the rate of return, whether positive or negative, applied by the Commission”;
(viii) in subsection (12) by striking out “the accumulated capital and interest” and substituting “the accumulated capital and the return, whether positive or negative, on the accumulated capital”;
(ix) in subsection (13) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(b) in section 38.54
(i) in subsection (1) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(ii) in subsection (2) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(iii) in subsection (8) by striking out “the accumulated capital and interest” and substituting “the accumulated capital and the return, whether positive or negative, on the accumulated capital”;
(iv) in subsection (9) by striking out “together with accrued interest” and substituting “together with the return, whether positive or negative, on the amount”;
(c) in section 38.7
(i) in subsection (1) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(ii) in subsection (4) by striking out “the accumulated capital and interest” and substituting “the accumulated capital and the return, whether positive or negative, on the accumulated capital”;
(iii) in subsection (5) by striking out “together with accrued interest” and substituting “together with the rate of return, whether positive or negative, applied to the amount”;
(d) in section 38.81
(i) in subsection (10) by striking out “interest had been paid” and substituting “the rate of return, whether positive or negative, had been applied”;
(ii) in subsection (11) by striking out “Interest shall be assumed to have been paid quarterly on the amount credited to a spouse’s account in the Pension Fund and the rate of interest payable” and substituting “The rate of return, whether positive or negative, shall be assumed to have been applied quarterly to the amount credited to a spouse’s account in the Pension Fund and the rate of return, whether positive or negative,”;
(iii) in subsection (12) by striking out “No interest, other than interest payable under subsection (10), is payable” and substituting “No rate of return, other than the rate of return applied under subsection (10), is applied”.
Regulation 82-210 under the Workers’ Compensation Act
20 Section 3 of New Brunswick Regulation 82-210 under the Workers’ Compensation Act is amended
(a) in paragraph (1)(e) by striking out “interest” and substituting “the return, whether positive or negative,”;
(b) in subsection (2) in the portion preceding paragraph (a) by striking out “accumulated capital and interest” and substituting “accumulated capital and the return, whether positive or negative, on the accumulated capital”.
Commencement
21Paragraph 10(b) of this Act shall be deemed to have come into force on April 1, 2015.