The Ford government has imposed massive cuts to the funding of legal aid, which will cause serious hardship and disruption throughout Ontario’s legal system.

Injured workers will be hit particularly hard. Three Community Legal Clinics that do vitally important work for injured workers have had their (already incredibly lean) operating budgets cut by 22 to 30%, and new rules have been imposed on the kind of advocacy work they’re allowed to do with their remaining funds.

I’m one of a group of private-bar lawyers who wrote to Attorney General expressing our concerns about this terrible situation. Our letter is below (or you can read it as a PDF).

July 23, 2019

Hon. Doug Downey, Attorney General
Ministry of the Attorney General
11th Floor, 720 Bay Street
Toronto, ON M7A 2S9

Dear Mr. Downey:

RE:      Restoring funding to legal aid

Congratulations on your appointment as Ontario’s Attorney General.

We’re writing about the most pressing issue before you: the cuts to legal aid imposed by your predecessor, Ms. Mulroney.

Reversing the cuts should be your top priority as Ontario’s chief law officer, responsible for the administration of justice in our province.

Who we are, and why we’re writing to you

We’re a group of six private-bar lawyers who practice workers’ compensation law.

None of us are employed by, or receive money from, Legal Aid Ontario. But we have close ties to the Community Legal Clinic system, and we understand the impact that the cuts to legal aid will have on ordinary people in Ontario.

We want to make you aware of that impact too.

More specifically, we want to make you aware of the devastating impact that the cuts will have on three Clinics that have been publicly identified by Legal Aid Ontario as “worker-focussed” and targeted for especially deep cuts accordingly.

The clinics are the Injured Workers Community Legal Clinic (IWC), the Industrial Accident Victims Group of Ontario (IAVGO) and the Workers’ Health and Safety Legal Clinic (WHSLC).

The cuts and their immediate effects on client service

The cuts to the three clinics are substantial. IWC and IAVGO have had their operating budgets cut by 22%, and WHSLC by 30%.

While other clinics were given two years to absorb their budget cuts, the three worker-focussed clinics’ cuts were imposed in full retroactively to April 1, so the impact on their ongoing operations for the remainder of 2019 is especially severe.

To cope with the cuts, IAVGO’s staff voluntarily took a 20 percent cut in their pay and the time they spend working. IWC is laying off four of its ten staff. WHSLC, which suffered the largest cut, will obviously have to reduce staff too.

Because of their reduced capacity, all three clinics are no longer taking on new clients.

So, as result of the cuts, the clinics find themselves turning away disabled people who desperately need legal help but cannot afford a lawyer. Some of these people will go to the Office of the Worker Adviser, which has long waiting lists for service, further drawing out their hardship. Others will give up on the WSIB and end up living in poverty on OW or ODSP benefits — thereby transferring responsibility for their disabilities from employers to Ontario’s taxpayers.

That shouldn’t be acceptable to a government “for the people.”

New restrictions on the use of funds and how they stack the deck against ordinary people

When it cut their budgets, Legal Aid Ontario imposed a new restriction on how the three clinics may use their remaining funding: they have to spend all their money on individual clients’ cases, and are not to spend a penny of their funding on broader advocacy.

That means that the clinics can no longer do important law reform work that benefits thousands of ordinary people, like advocating for policy changes at the WSIB, participating in public consultations, or making submissions to select committees and the government about changes to legislation.

That’s going to leave a huge gap, with no one to represent the interests of ordinary people and counterbalance the lobbying done by the well-funded business lobby.

Lawyers in private practice, like us, do our best to contribute to this kind of work on a volunteer basis, but there’s a limit to what we can do. Only paid Community Legal Clinic staff can put in the work necessary to ensure the voices of ordinary people are heard — and now they cannot do it.

Again, that shouldn’t be acceptable to a government “for the people.”

What we’re asking you to do

We ask you to immediately reverse the cuts to legal aid and remove the new restriction on the clinics’ use of funds.

Doing so should be a matter of honour for you:

• As Attorney General, whose role includes safeguarding the administration of justice in our province
• As a member of the Progressive Conservative party, who promised to govern “for the people,” and
• As a recipient of the Sam Delmar Award, which we understand is given to lawyers who share the qualities possessed by Sam: dedication of effort, humility and courage.

We trust you will respond to our letter quickly, setting out your plan to restore the funding to legal aid and strengthen the Clinics’ ability to help ordinary people.

Yours sincerely,

PETER BIRD
Workplace One Complex
340 King Street East, 2nd floor
Toronto, ON M5A 1K8
bird.peter.d@gmail.com

MICHAEL GREEN
103-1415 Bathurst Street
Toronto, ON M5R 3H8
mgreen@workerscomplaw.ca

JACQUELINE KOTYK
302-658 Danforth Avenue
Toronto, ON M4J 5B9
jacqueline@asingletonlaw.ca

ELLEN LIPES
2000-393 University Avenue
Toronto, ON M5G 1E6
elipes@wsiblaw.ca

GARY NEWHOUSE
103-1415 Bathurst Street
Toronto, ON M5R 3H8
gnewhouse@sympatico.ca

ANTONY SINGLETON
302-658 Danforth Avenue
Toronto, ON M4J 5B9
antony@asingletonlaw.ca

Last week I published a post (Ontario: open for harassment) commenting on the revelation, in the Toronto Star, that during the first five months that the chronic mental stress the legislation was in effect, the WSIB denied 94% of CMS claims.

The Star article was based on information from an internal WSIB audit of adjudication under its chronic mental stress policy.

That internal audit was obtained by IAVGO Community Legal Clinic as part of a freedom of information request.

IAVGO has now made the WSIB’s full audit document available on its website, along with an excellent analysis of its contents, written by IAVGO lawyer Maryth Yachnin: “Adjudication of Chronic Mental Stress Injuries by the WSIB: A Farce, But We’re not Laughing.”

The details of the audit are just as disturbing as the headline number of denials. As IAVGO explains, the audit shows that, in the great majority of cases, the WSIB is doing little, if any, investigation of circumstances that gave rise to the claim – or even gathering basic medical evidence.

Indeed, the details of the audit thoroughly justify IAVGO’s conclusion that:

“The WSIB is not treating chronic mental stress claims as real injuries. It is failing to do basic investigations, gather documents, or investigate complex workplace risk factors for mental health injuries. The result is the near-total exclusion of workers with mental stress injuries from health care, return to work and compensation support when they are hurt on the job.”

I encourage you to visit IAVGO’s website and read IAVGO’s analysis, and obtain a copy of the WSIB’s audit, for yourself!

This week the Toronto Star revealed an internal WSIB audit showing that, in the first five months of the year, the WSIB denied 94% of claims for chronic mental stress.

That’s a bombshell revelation. Without urgent reform, the WSIB will turn a significant human rights victory for Ontario workers into a major step backward, leaving them more vulnerable than ever to harassment in the workplace. Continue reading →

Recently I revisited a WSIAT decision from last December whose interpretation of the “entitlement presumption”—a fundamental principle of workers’ compensation law—caused consternation among worker advocates when it was first released.

It’s a case that’s still worth discussing, not just because of the importance of the “entitlement presumption,” but also because we can draw a broader lesson about advocacy from it. Continue reading →

With great fanfare (including breathless tweets) the WSIB announced it has eliminated its unfunded liability, ten years ahead of schedule.

But the fanfare didn’t end there. We also learned who would enjoy the dividend of full funding: employers, who received a massive reduction in premiums: 29.8% on average, amounting to almost $1.5 billion per year.

Our new Minister of Labour celebrated this cut as “just one part of our plan to lower taxes, reduce the regulatory burden, protect and grow jobs, and send a message to the world that Ontario is open for business.” For workers, she had nothing to offer but an anodyne assurance that “workers and their families” can now have “peace of mind” the WSIB will pay them the benefits they’re entitled to under the law.

That the Minister could so openly disregard workers and celebrate giving the entire dividend of full funding to employers is testament to the way employers have captured the narrative about the unfunded liability (UFL). Continue reading →

Recently I blogged about the transition rules for the new mental stress provisions in the Workplace Safety and Insurance Act.

One of the transition rules allows workers who sustained a mental stress injury before January 1, 2018, to file a claim and have it adjudicated by the WSIB under the new mental stress provisions, provided that

• You have not filed a mental stress claim before, and
• Your injury occurred on or after April 29, 2014.

The limitation date for filing those claims is almost upon us: the deadline is July 1, 2018. Continue reading →

[Note: this is a slightly revised version of a paper I presented to the OBA Workers’ Compensation Section’s 2018 annual conference, A New Era in Workplace Safety and Insurance Law.]

In 2017, the Ontario government removed the bar against mental stress claims under the WSIA, replacing it with a new provision ex­press­ly allowing workers to claim benefits for mental stress injuries.

These amendments came into force on January 1, 2018, but they also have a limited retroactive effect. The government enacted a set of transition rules setting out how the WSIB and the WSIAT will deal with the claims and appeals of workers who suffered a mental stress injury before January 1, 2018.

The transition rules are written in dense technical prose. This post is an attempt to untangle them and explain them in plain language. Continue reading →