1960 WORKMEN’S COMPENSATION CHAP. 413 CHAPTER 413 Workmen% Compensation Act Title. 1. This Act may...

1960 WORKMEN’S COMPENSATION CHAP. 413

CHAPTER 413 Workmen% Compensation Act

Title. 1. This Act may be cited as the Workmen’s Compensation Act.

2. In this Act, unless the context otherwise requires,

R.S. 1948, c. 370, s. 1. Internre- tation.

“ accident ” includes a wilful and intentional act, not being the act of the workman, and also includes a chance event occasioned by a physical or natural cause as well as disablement arising out of and in the course of the employment, and where the disablement is caused by disease, the date of the accident shall be deemed to be the date of the disablement;

“Accident Fund” means the fund provided for the payment of compensation, outlays, and expenses under Part I;

“ Board ” means the Workmen’s Compensation Board; “ compensation ” includes medical aid; “ Compensation Counsellor ” means the official of the Department

of Labour appointed by the Lieutenant-Governor in Council as such;

“ construction ” includes reconstruction, repair, alteration, and demolition;

“ Consumer Price Index ” means the Consumer Price Index published by the Dominion Bureau of Statistics of Canada;

“ dependents ” means such of the members of the family of a workman as were wholly or partly dependent upon his earnings at the time of his death, or who but for the incapacity due to the accident would have been so dependent, and includes a wife, husband, parent, or child who satisfies the Board that he or she had a reasonable expectation of pecuniary benefit from the continuation of the life of the deceased workman, and no person shall be excluded as a dependent because he is a non- resident alien;

“ employer ” includes every person having in his service under a contract of hiring or apprenticeship, written or oral, express or implied, any person engaged in any work in or about an industry, and in respect of any industry within the scope of Part I includes the Crown in right of the Province and municipal corporations and boards and commissions having the management of any work or service operated for a municipal corporation;

“ employment,” when used in Part I, means and refers to the whole or any part of any establishment, undertaking, trade, or business within the scope of that Part, and in the case of any industry not as a whole within the scope of Part I includes any

5143

CEAP. 413 WORKMEN’S COMPENSATION 9 ELIZ. 2

department or part of such industry as would if carried on separately be within the scope of Part I;

“ industrial disease ” means any of the diseases mentioned in the Schedule, and any other disease which the Board by regulation or otherwise may designate or recognize as an industrial disease;

“ industry ” includes establishment, undertaking, work, trade, and business;

“ invalid ” means physically or mentally incapable of earning; “ manufacturing ” includes making, preparing, altering, repairing,

renovating, servicing, dyeing, cleaning, ornamenting, printing, W i n g , packing, assembling the parts of, and adapting for use or sale any raw material, goods, article, or commodity;

“ medical aid,” when used in Part I, includes the several matters and Wigs which the Board under this Act is empowered to provide for injured workmen;

“member of the family” means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daugh- ter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, and half-sister, and a person who stood in loco parentis to the workman or to whom the workman stood in loco parentis, whether related to him by consanguinity or not so related, and where the workman is the parent or grand- parent of an illegitimate child includes such child, and where the workman is an illegitimate child includes his parents and grandparents;

“ metalliferous-mining industry ” includes the operations of milling and concentrating, but does not include any other operations for the reduction of minerals;

“ Minister ” means the Minister of Labour; “ outworker ” means a person to whom articles or materials are

given out to be made up, cleaned, washed, altered, ornamented, finished, repaired, or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or materials;

“ person ” includes female as well as males, and includes any corporation, and for the purposes of section 11 includes the executor or administrator of a person;

‘‘ physician ” means any person registered under the Medical Act; “ q d e d practitioner” means a person registered under the

Chiropody Act, the Chiropractic Act, the Dentimy Act, or the Naturopathic Physicians Act;

“ regulations ” means rules and regulations made by the Board under this Act;

“ specialist ” means any physician residing and practising in the Province and listed by the Royal College of Physicians and Surgeons of Canada as having specialist qualifications; 5144


“ workman ” includes 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 a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry within the scope of Part I for the purpose of undergoing training or probationary work specified or stipulated by the empioyer as a preliminary to emplo-pent, and includes a member of a fire brigade of any municipality or village municipality working with or without remuneration; and in respect of the industry of mining includes a person while he is actually engaged in taking or attending a course of training or instruction in mine-rescue work under the direction or with the written approval of an employer in whose employment the person is employed as a workman in that industry, or while with the knowledge and consent of any employer in that industry, either express or implied, he is actually engaged in rescuing or protecting or attempting to rescue or protect life or property in the case of an explosion or accident which endangers either life or property in a mine, and this irrespective of the fact whether during the time of his being so engaged the person is entitled to receive wages from such employer, or from any employer, or is performing such work or service as a volunteer; and, further, in respect of the industry of mining, includes a person while he is engaged as a member of the inspection committee, appointed or elected by the workmen in the mine, or in default of such appointment or election by the workmen, if appointed by the Chief Inspector of Mines, to in- spect the mine on behalf of the workmen, pursuant to General Rule 19 (c ) , section 65 of the Cool Mines Regulation Act, and includes an independent operator admitted by the Board under clause (b) of subsection (2) of section 5. R.S. 1948, c. 370, s. 2; 1954, c. 54, s. 2; 1955, c. 91, s. 2; 1959, c. 95, s. 2; 0. in C. 3031/65.

3. This Act is divided into two parts, relating to the following sub-

4-81 Division (1) .-Scope of This Part ______ ___ 4- 6 Division (2) .-Compensation I___-_____-_- 7-1 7 Division (3) . C c a I e of Compensation 18-29 Division (4) .-Accident Fund and Assessments- 30-48 Division (5 ) .-Procedure and Miscellaneous __ 49-65 Division (6) .-Workmen’s Compensation Board 66-81

Scope of Part I 82-85 R.S. 1948, c. 370, s. 3.

mvtrion of Act jects:-

PUT SECTION I.-Compensation to Workmen and Dependents

E-Liability of Employers in Industries Not within the

5145

CHAP. 413 WORKMEN’S COMPENSATION 9 ELIZ. 2

PART I

COMPENSATION TO WORKMEN AND DEPENDENTS

Division (l).--Scope of This Part

4. This Part applies to employers and workmen in or about the industries of lumbering, mining, assaying, quarrying, excavation, dia- monddrilling, well drilling or digging, fishing, oyster cultiviting, kelp collection, manufacturing, operating of wholesale establishments, geophysical exploration, printing, construction, building, building-moving, steam-cleaning of buildings, land-clearing, engineering, installation of machinery or equipment, transportation, dredging, aerial testing or flying or demonstrating, or aerial transportation and aerial advertising, or operation of airfields; peat-processing; automobile repairing, servicing, storage, or selling; armature-winding; bridge operation, repairing, or renovating; dental laboratories, industrial testing, distribution and servicing of automatic music-machines, carpet or linoleum laying, silver- or electro-plating, ice-harvesting, land-surveying, horticultural nurseries, greenhouse operations, or landscape-gardening or other gardening (exclusive of market-gardening) ; operation of parks, cemeteries, horse-race courses, ice-rinks, roller-rinks, bowling-alleys, billiard-parlours, dance- halls as a business, golf-courses, broadcasting-stations, motion-picture houses or other theatres (excluding in all cases players or artists); operation of retail stores, photo-taking or photo-printing shops, private schools, private clubs, trade-unions, barber-shops, hairdressing establishments or beauty-parlours, steam baths, auctioneering establishments, stockyards, packing-houses, refrigerating or cold-storage plants, veterinary hospitals, nursing homes, hospitals, restaurants, licensed public houses or lounges, floor-polishing or floor-waxing service or janitor service, chimney-cleaning or window-cleaning service; operation of railway or tramways; operation of telegraph or telephone systems; operation of lumber, wood, sawdust, coal, or builders’ supply yards, or travelling wood-saw; operation of steam heating plants, power plants, electric-light and electric-power plants or systems, gasworks, waterworks, irrigation- works, or sewers; operation of municipalities or municipal boards; operation of docks, wharves, warehouses, freight and passenger elevators, grain-elevators, boats, ships, tugs, ferries, or dredges; navigation, shipping, marine salvage, stevedoring, teaming, trucking, hauling, transfer, messenger service or delivery service, exterminating and fumigating service, funeral undertaking, horse-shoeing, blacksmithing, scavenging, street-cleaning, painting, decorating; laundry, dyeing, cleaning, or pressing service; appliance, equipment, or machinery rental; motion- picture production (exclusive of players and artists) ; operation of poultry-hatcheries (where not part of farming operation) ; poultry- processing, wholesaling of fish, meat, or raw hides; film distribution; operation of auto courts, motels, or tourist resorts; whaling; distribution

*mcatioo of POR I.

5146


#

or servicing of automatic amusement, music, or vending machines or devices; and the operation of lodging-houses having ten or more bedrooms, hotels, commercial buildings, or apartment buildings where rooms, suites, or space is rented to a tenant, and non-industrial construction of buildings having a value of two thousand five hundred dollars or more, and in or about any of the industries or occupations incidental to or connected with any of the industries enumerated in this section, and in or about such other industries or occupations as may be determined by the Board; and when any industry or occupation is brought under this Part by determination of the Board, it may be brought under on such terms and conditions as the Board deems proper; provided that, subject to section 5, this Part does not apply to the following:-

(a) Persons whose employment is of a casual nature, and who are employed otherwise than for the purposes of the employer’s trade or business :

( b ) Outworkers : (c ) Members of the family of the employer residing with the

employer and being under the age of twenty-one years or the wife or husband of the employer; or

(d) Persons employed by American contractors engaged upon the construction of the military highway to Alaska and other pro- jects of the Government of the United States in British Colum- bia since the first day of January, 1942, when compensation is provided for such persons under the Longshoremen’s and Harbor Workers’ Compensation Act of the United States. R.S. 1948, c. 370, s. 4; 1954, c. 54, s. 3; 1955, c. 91, s. 3; 1959, c. 95, s. 3.

Admi~ionof industries. 5. (1) On the application of the workmen in the case of any industry

not within the scope of this Part, or on the application of the employer in the case of any industry or workman not within the scope of this Part, the Board may by order admit the industry or workman, as the case may be, as being within the scope of this Part, and upon such admission the industry or workman shall be deemed to be within the scope of this Part.

AMSS~OII or employer and indemd?at omrator.

(2) (a ) Any employer in an industry within the scope of this Part, and any member of the family of the employer as defined in clause ( c ) of section 4 and employed by him in such industry, may be admitted by the Board as being entitled for himself and his dependents to the same compensation as if the employer or such member of his family were a workman within the scope of this Part.

(b) Any independent operator, not being an employer or a workman but performing work of a nature which, if he were a workman, would be within the scope of this Part, may be admitted by the Board as being entitled for himself and his dependents to the same compensation as if he were a workman within the scope of this Part.

5147


Id.nncr Of (3) Admissions under this section may be made from time to time in such manner and form and subject to such terms and conditions and for such period as the Board may deem adequate and proper. RS. 1948, c. 370, s. 5; 1954, c. 54, s. 4; 1955, c. 91, s. 4.

admission.

A~~U-tion 6. This Part applies to any employment by or under the Crown in right of the Province, including employment by any permanent Board or Commission of the Crown in right of the Province. R.S. 1948, c. 370, s. 6.

Part I , Division (2).-Compensation

7. (1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a workman, compensation as provided by this Part shall be paid by the Board out of the Accident Fund.

(2) If the injury does not disable the workman longer than the period of three days, exclusive of any holiday upon which the workman would not in the usual course of his employment have worked, from earning full wages at the work at which he was employed, no compensation, other than medical aid, shall be payable under this Part. If the injury disables the workman longer than the period of three days, compensation shall be payable from the date of disability.

(3) Where the injury is attributable solely to the serious and wilful misconduct of the workman, no compensation shall be payable unless the injury results in death or serious or permanent disablement. (4) Where the accident arose out of the employment, unless the

contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of the employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. (5) Where the personal injury consists of injury or disease in part due

~ ~ $ $ ! ~ t . to the employment and in part due to causes other than the employment or where the personal injury aggravates, accelerates, or activates a disease or condition existing prior to the injury, compensation shall be allowed for such proportion of the disability as may reasonably be attrib- uted to the personal injury sustained. R.S. 1948, c. 370, s. 7; 1954, c. 54, s. 5; 1959, c. 95, s. 4.

to crown.

cmmnmon Murnial in cpplcs Of

accident.

Waiting period of threedays.

rn@toferi-

m i ~ ~ ~ n d u c t .

Pmwmptions,

ow and wilful

tion mnpenu- in of indurut.l

8. (1) Where ( a ) a workman suffers from an industrial disease and is thereby

disabled from earning full wages at the work at which he was employed; or

diseases.

(b) the death of a workman is caused by an industrial disease; and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the date of the disablement, whether under one or more emDlov- ments, the workman or his dependents is or are entitled to cornpenski&

dl 48

1960 WORKMEN'S COMPENSATION CHAP. 413

under this Part as if the disease were a personal injury by accident arising out of and in the course of that employment, subject to the following modifications :-

(c) The disablement shall be treated as the happening of the accident, except that all periods of disablement from an industrial disease in any sixty-day period shall be deemed to be the result of one accident; and

( d ) If the workman has at the time of entering the employment wilfully and falsely represented himself in writing as not having previously sdered from the disease, compensation is not payable.

(2) I€ the workman at or immediately before the date of the disablement was employed in any process or industry mentioned in the second column of the Schedule, and the disease contracted is the disease in the first column of the Schedule set opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved.

(3) ( a ) The Board may, subject to the approval of the Lieutenant- Governor in Council, on such terms and conditions and with such limitations as the Board may deem adequate and proper, add to or delete from the Schedule any disease which the Board deems to be an industrial disease, and may in like manner and with the same approval add to or delete from the Schedule any process or industry.

(b) The Board may by the regulations require every physician or qualified practitioner treating a patient who is suffering from an industrial disease to report to the Board such information relating thereto as it may require.

(c) Notwithstanding clause (a), the Board may designate or recognize any disease as being a disease peculiar to or characteristic of a particular process, trade, or occupation on such terms and conditions and with such limitations as the Board may deem adequate and proper.

(4) Nothing in this section affects the right of a workman to compensation in respect of a disease to which this section does not apply, if the disease is the result of an injury in respect of which he is entitled to compensation under this Part.

( 5 ) " Silicosis " means a fibrotic condition of the lungs caused by the inhalation of silica dust and accompanied by a lessened capacity for work.

disabled from uncomplicated silicosis or from silicosis complicated with tuberculosis on or after the &st day of January, 1936, and a workman in the coal-mining industry who becomes disabled from uncomplicated Sificosk or from silicosis complicated with tuberculosis on or after the first day of January, 1943, is entitled to compensation for totaI or partial disability as provided by this Part; and where death results from such disability the dependents of such workman are entitled to com-

Pm~mmions.

Reports industrial of dfseaw-

cminr i shta not affected.

''~mcoais'' &hod.

DbbililY ( 6 ) A workman in the metalliferous-mining industry who becomes

d l

5149 * .*I

CHAP. 413 WORKMEN'S COMPENSATION 9 ELIZ. 2

pensation as provided by this Part; but neither a workman nor his dependents is or are entitled to compensation for such disability or death unless the workman

(a) has been a resident of this Province for a period of at least three years last preceding his disablement, or unless at least two-thirds of his exposure to dust containing silica was in this Province; and

(6) was free from silicosis and tuberculosis before being first exposed to dust containing silica in the metalliferous-mining or coal-mining industry in this Province; and

( c ) has been a workman exposed to dust containing silica in the metalliferous-mining or coal-mining industry in this Province for a period or periods aggregating three years preceding his disablement, or for any lesser period if the workman was not exposed to dust containing silica anywhere except in this Province; and

(d) has filed a claim for compensation while usually and regularly employed in the metalliferous-mining or coal-mining industry in this Province, or has made and established his claim for potential disability within five years after the date of leaving such employment in this Province, and in either case within one year after the date on which he became disabled; but this provision shall not prevent an allowance by the Board of any case due to silicosis that the Board considers should in justice be allowed; but no compensation is payable under this provision for silicosis complicated with tuberculosis for any period prior to the first day of April, 1952;

except that if the workman has been exposed to the inhalation of dust containing silica in two or more classes or sub-classes of industry in this Province the Board may apportion the cost of compensation amongst the funds provided by such classes or sub-classes on the basis of the duration and severity of the exposure in each.

(7) When a workman has sustained pulmonary injury by a disabling form of pneumoconiosis as a result of exposure to dust conditions, that are deemed by the Board to have contributed to the development of the disease in employment in this Province in any industry in which that disease is an industrial disease under this Part, he or his dependents is or are entitled to compensation only if he was free from pneumoconiosis and tuberculosis before being first exposed to such dust conditions in this Province, and if his residence and exposure to such dust conditions have been of the duration required to entitle a workman to compensation for silicosis under subsection (6) and he has filed or made and established

compensation may be apportioned in the manner provided by that subsection, but nothing in this subsection shall prevent an allowance by the Board of any case of pneumoconiosis that the Board considers should in

nation. ComDeb

his claim within the period prescribed by that subsection; and the cost of I .I

I* 5150

7

1960

Medical examination.

Agreement with other Government authority.

Accidents

WORKMEN'S COMPENSATION CHAP. 413

justice be allowed; but no compensation is payable under this provision for pneumoconiosis complicated with tuberculosis for any period prior to the first day of April, 1952.

(8) The Board may require an employer in any industry in which an industrial disease has been shown to exist to cause any or all workmen, within one month from the date of entering the employment and thereafter at such intervals as the Board may direct, to be examined by a physician or qualified practitioner selected by and at the expense of the employer; and the Board shall prescribe the nature of the medical examination and the information to be obtained and recorded, and may require an employer in any industry to employ only such workmen as have been found on such examination to be physically 'suited for employment in such industry. Upon request, the physician or qualified practitioner who examines a workman shall furnish to the Board the information and record from which the diagnosis was made. The Board may after investigation cancel any certificate given by a physician or qualiiied practitioner or may in its discretion issue a certificate to a workman.

(9) The Board may, subject to the approval of the Lieutenant-Gover- nor in Council, enter into an agreement either with Canada or with the appropriate authority in any other Province, providing for co-operation in all matters under this Act relating to a workman disabled by silicosis, and such agreement supersedes the provisions of this Act, to such extent as is necessary for the purpose of giving it effect. R.S. 1948, c. 370, s. 8; 1952, c. 15, s. 2; 1954, c. 54, s. 6; 1955, c. 91, s. 5; 1959, c. 95, s. 5.

9. (1) Where an accident happens while the workman is employed elsewhere than in the Province, which would entitle him or his dependents to compensation under this Part if it had happened in the Province, the workman or his dependents is or are entitled to compensation under this Part

( a ) if a place of business of the employer is situate in the Province, and the residence and the usual place of employment of the workman are in the Province, and his employment out of the Province has immediately followed his employment by the same employer within the Province and has lasted less than six months; or

( b ) if a place of business of the employer is situate in the Province and the residence and usual place of employment of the workman are in the Province and the accident happens on a steam- boat, ship, or vessel, or on a railway, aeroplane, flying- machine, truck, bus, or other vehicle used in transportation of passengers or freight to or from the Province, and the nature of the employment is such that in the course of the work or service which the workman performs it is required to be performed both within and without the Province.

happening out of Province-

5151

i


No-- tiw Dayable ~~

~ ~ m t ~ o f

(2) Except as provided by subsection ( 1 ) ,no compensation is payable under this Part where the accident to the workman happens elsewhere than in the Province.

(3) In any case where compensation is payable in respect of an mi- dent happening elsewhere than in the Province, if the employer has not fully contributed to the Accident Fund in respect of all the wages of workmen in his employ who are engaged in the employment or work in which the accident happens, the employer shall pay to the Board the full amount of capitalized value, as determined by the Board, of the compensation payable in respect of the accident, and the payment of such amount may be enforced in the same manner as the payment of an assessment may be enforced.

(4) The Board, if satisfied that the default of the employer in respect of his contribution to the Accident Fund was excusable, may in any case relieve the employer in whole or in part from liability under subsection (3).

(5) The Board may make and carry out arrangements with the

cuc(I.

employer.

Board relieve may from w m ~ -

Power to make arrangements with Workmen’s Com en=- tion floard of other Provinces.

Workman to elect as to comoep stion.

Notice of e ldon .

Workmen may brim action against person other than employer.

5152

Workmen’s Compensation Board of any other Province in Canada to avoid duplication of assessments on the earnings of workmen protected at the same time under the Workmen’s Compensation laws of two or more Provinces, and make any adjustment in assessments on their employers that the Board deems equitable, and may repay any other Workmen’s Compensation Board for any payment of compensation ma& by it under any such arrangement. R.S. 1948, c. 370, s. 9; 1954, c. 54, s. 7; 1959, c. 95, s. 6.

10. (1) Where by the law of the country or place in which the accident happens the workman or his dependents are entitled to compensation in respect of it, they shall be be bound to elect whether they will claim compensation under the law of that country or place or under this Part, and to give notice of such election; and if such election is not made and notice given, it shall be presumed that they have elected not to claim compensation under this Part; but if there is in existence any arrangement made under subsection (5) of section 9, any right of election is subject to the terms of such arrangement.

(2) Notice of the election shall be given to the Board within three months after the happening of the accident, or, in case it results in death, within three months after the death, or within such longer period as either before or after the expiration of such three months the Board may allow. R.S. 1948, c. 370, s. 10; 1954, c. 54, s. 8.

11. (1) Where an accident arising out of and in the course of his employment happens to a workman in such circumstances as entitle him or his dependent to an action against some person other than his employer and other than an employer in an industry within the scope of this Part or against the Crown, the workman or his dependent, if entitled to

WORKMEN’S COMPENSATION CHAP. 413

c

1960

Entitled to difference between mount collected and compensation.

Board mbrogated to workman’s rights.

Board may award compensation in lieu of action a d charge it against another class.

Bktion for infant.

Where em- PIOYrr I-mrUY at fault.

compensation under this Part, may claim such compensation or may bring such action; but if the workman or dependent elects to claim compensation, he shall do so within three months after the happening of the accident or, in case it results in death, within three months after the death.

(2) If the workman or his dependent brings such action and, if after trial, or after settlement out of Court with the written approval of the Board, less is recovered and collected than the amount of the compensation to which the workman or dependent would be entitled under this Part, the workman or dependent is entitled to compensation under this Part to the extent of the amount of the merence.

(3) If any such workman or his dependent makes application to the Board claiming compensation under this Part, neither the making of such application nor the payment of compensation thereunder shall restrict or impair any such right of action against the party or parties liable, but as to every such claim the Board is subrogated to the rights of the workman or his dependent and may maintain an action in his name or in the name of the Board, and if more is recovered and collected than the amount of the compensation to which the workman or his dependent would be entitled under this Part, the amount of the excess, less costs and administration charges, may be paid to the workman or his dependent. The Board has exclusive jurisdiction to determine whether it shall maintain an action or compromise the right of action, and the decision of the Board is final and conclusive.

(4) In any case within the provisions of subsection ( l ) , neither the workman nor his dependent nor the employer of the workman shall have any right of action in respect of the accident against an employer in any industry within the scope of this Part when the accident arises out of and in the course of the business of the employer; and in any such case where it appears to the satisfaction of the Board that a workman of an employer in another class or sub-class within the scope of this Part is injured owing to the negligence of an employer or of the workman of an employer in another class or sub-class within the scope of this Part, the Board may direct that the compensation awarded in such case shall be charged, in whole or in part, against the last-mentioned class or subclass; but the provisions of this subsection shall not affect any right which an employer may have against another employer arising out of an indemnity agreement or contract made between such employers.

( 5 ) An application filed by a parent or by the Official Guardian for compensation for the infant child of a deceased workman shall be deemed to be a valid election on behalf of such child.

(6) If in any action brought by a workman or dependent of a workman or by the Board in any case within the provisions of subsection (1) it is found that the accident was due partly to the negligence of one or more employers under this Part, no damages, contribution, or indemnity shall be recoverable for the portion of the loss or damage caused by the

5153


negligence of such employer; the portion of the loss or damage caused by the negligence of such employer shall be determined although such employer is not a party to the action.

Retmmive (7) Subsections (l), (3 ) , ( 5 ) , and (6) of this section apply retre ~;.-$;k$??; actively to all actions in which h a 1 judgment has not been entered. effect of sub-

R.S. 1948, c. 370, s. 11; 1954, c. 54, s. 9.

Providomof

~ c u o f * l l 12. (1) The provisions of this Part are in lieu of all rights and

rights of action, statutory or otherwise, to which a workman or the members of his family are or may be entitled against the employer of such workman for or by reason of any accident happening to him or any industrial disease contracted by him on or after the first day of January, 1917, while in the employment of such employer, and no action in respect thereof lies.

(2) A workman under the age of twenty-one years shall be deemed sui juris for the purpose of this Part, and no other person shall have any cause of action or right to compensation for an injury to the workman except as expressly provided in this Part.

Payment to ( 3 ) Any compensation owing or accrued to a workman or pensioner freeofdebts. for a period not exceeding three months before his death may at the

discretion of the Board be paid to a widow, invalid widower, or a person who takes charge of the funeral arrangements, free from debts of the deceased. (4) Where an action in respect of an injury is brought against an

employer by a workman or a dependent, the Board has jurisdiction upon the application of any party to the action to adjudicate and determine whether the action is one the right to bring which is taken away by this Part, and such adjudication and determination is final and conclusive; and if the Board determines that the action is one the right to bring which is taken away by this Part the action is for ever stayed. R.S. 1948, c. 370, s. 12; 1954, c. 54,s. 10.

this Part in actions.

Workman who is a minor to& sui iuris.

widow. ctc..

Stayofaction

brought. impromrly

Corn--

be waived. 13. It is not competent for a workman to agree with his employer to

waive or to forego any of the benefits to which he or his dependents are or may become entided under this Part, and every agreement to that end is absolutely void. R.S. 1948, c. 370, s. 13.

tion cannot

No conmu-

workmen. 14. ( 1 ) It is not lawful for an employer, either directly or indirectly,

to deduct from the wages of any of his workmen any part of any sum which the employer is or may become liable to pay into the Accident Fund or otherwise under this Part, or to require or to permit any of his workmen to contribute in any manner towards indemnifying the employer against any liability which he has incurred or may incur under this Part.

(2) Every person who contravenes any of the provisions of subsection (1 ) is guilty of an offence against this Part, and is also liable to repay to the workman any sum which has been so deducted from his

lions from

cmravention

of fam. of subsec. (1)

5154


wages or which he has been required or permitted to pay in contravention of subsection (1). R.S. 1948, c. 370, s. 14.

Comvcnea- tion not aMimable or liable to attachment.

15. No s u m payable as compensation or by way of commutation of any periodical payment in respect of it shall be capable of being assigned, charged, or attached, nor shall it pass by operation of law except to a personal representative, nor shall any claim be set off against it, except for moneys advanced by way of financial or other social-welfare assistance owing to the Province or to any municipality, or for moneys owing to the Accident Fund. R.S. 1948, c. 370, s. 15; 1954, c. 54, s. 11; 1955, c. 91, s. 6.

Conditions on which compensation is payable in respect of hernia.

16. No compensation is payable in respect of hernia, unless (a ) it is clinical hernia of disabling character and of recent pn-

mary demonstrability; and (b) the onset thereof can be shown to have been immediately

preceded by accident; and ( c ) it is shown that at the time of the occurrence of the accident

the workman immediately reported his condition to his employer or ceased work at the time and reported within seventy- two hours of so ceasing work;

except that in case there has been excusable failure on the part of the workman to comply with this section the Board shall pay compensation if it is of the opinion that the claim in justice should be allowed. R.S. 1948, c. 370, s. 16; 1954, c. 54, s. 12.

Measures to assist injured men to return to work.

17. To aid in getting injured workmen back to work or to assist in lessening or removing any handicap resulting from their injuries, the Board may take such measures and make such expenditures from the Accident Fund as it may deem necessary or expedient, regardless of the date on which such workman first became entitled to compensation. R.S. 1948, c. 370, s. 17; 1952, c. 15, s. 3; 1959, c. 95, s. 7.

Part I , Division (3).-Scale of Compensation 18. (I ) Where death results from the injury, the consequent funeral

expenses, not in excess of two hundred and sixty-five dollars, and the burial and cemetery charges or cremation charges, not in excess of eighty-five dollars, shall be paid in addition to all other compensation payable under this section, but the employer of such workman shall bear the cost of transporting the body to the place of business of the nearest undertaker, and if burial does not take place there any additional transportation of the body to a point within the Province may, up to the sum of one hundred dollars, be paid out of the Accident Fund, and no action for any amount larger than that fixed by this subsection shall lie in respect of the funeral, burial, or cremation of such workman or cemetery charges in connection therewith.

(2) Where death results from the injury, compensation shall be paid to the dependents of the deceased workman as follows:-

Burial exPemm

#”

c a m n a a -

dewndents. tion to

5155 r

CHAP. 413

5156

WORKMEN’S COMPENSATION 9 ELIZ. 2

(a ) Where the dependent is a widow or an invalid widower without any dependent children, a monthly payment of one hundred and fifteen dollars during the life of the surviving spouse:

(b) Where the dependents are a widow or an invalid widower and one or more children, a monthly payment of one hundred and meen dollars, together with

(i) an additional monthly payment of forty dollars for each child under the age of sixteen years and for each invalid child of any age for whom no payment is made under paragraph (ii) or ($); and

(ii) an additional monthly payment of forty-five dollars for each child while regularly attending an academic, technical, or vocational school at any time between his sixteenth and eighteenth birthdays; and

(iii) an additional monthly payment of fifty dollars for each child while regularly attending an academic, technical, or vocational school at any time between his eighteenth and twenty-first birthdays:

( c ) Where the dependents are children, there being no dependent widow or dependent invalid widower,

(i) a monthly payment of forty-five dollars to each child under the age of sixteen years and to each invalid child of any age for whom no payment is made under paragraph (ii) ; and

(ii) a monthly payment of fifty-five dollars to each child who is regularly attending an academic, technical, or vocational school at any time between his sixteenth and twenty-first birthdays :

(d) Where there is no widow, invalid widower, or child entitled to a payment under clause ( c ) as a dependent, but the workman leaves other dependents, a sum reasonable and propor- tionate to the pecuniary loss to such dependents occasioned by the death, to be determined by the Board, but not exceeding one hundred and fifteen dollars per month to a parent or parents, and not exceeding in the whole one hundred and fifteen dollars per month:

(e) In any case within the provisions of clause ( a ) or (c), if the workman leaves a parent or parents who are dependents, the Board may in its discretion award to the parent or parents a sum to be determined by the Board, but not exceeding one hundred and fifteen dollars per month, or if the workman leaves a widow, widower, parent, or child who is not dependent on his earnings at the time of his death but who had a reasonable expectation of pecuniary benefit from the continuance of the life of the workman the Board may in its discretion award to such widow, widower, parent, or child

c


payments not exceeding one hundred and fifteen dollars per month for life or a lesser period, but not to exceed in the whole one thousand five hundred dollars: Where the dependents are residing outside of Canada and entitled to compensation under clause (a), (b), ( c ) , (d), or (e) of this subsection, the Board may award the dependents such lesser sum as in the opinion of the Board would at the date of death maintain them in a like degree of comfort as dependents of the same class residing in Canada. Should such a dependent subsequently become resident in Canada, the Board may revise the award so as to provide the same amount as provided for a dependent resident in Canada at the time of the death of the workman and to continue same for the period of such residence: Where the workman leaves no dependent widow, or the widow subsequently dies, and it seems desirable to continue the existing household, and where an aunt, sister, or other suitable person acts as foster-mother in keeping up such household and taking care of and maintaining the children entitled to compensation in a manner that the Board deems satisfactory, the person acting as foster-mother shall, while so acting, be entitled to receive, until the children reach the age of twenty-one years or cease at an earlier age to be entitled to compensation, the same monthly payments of compensation for herself and the children as if she were the widow of the deceased; and in such case the children's part of such payments shall be in lieu of the monthly payments that they otherwise would have been entitled to receive: Where the workman who for the seven years last preceding his death maintained a common-law wife but left no dependent widow, the compensation to which a dependent widow would have been entitled under this Part may in the discretion of the Board be paid to such common-law wife: In addition to any other compensation provided, a dependent widow or foster-mother in Canada to whom compensation is payable is entitled to a lump sum of two hundred and fifty dollars : Where compensation is payable to an invalid widower, if the widower ceases to be an invalid widower, the Board may cease paying compensation to him.

(3) Where there are both total and partial dependents, the compen-

dents. Where there is a partial dependent, the amount of compensation payable shall be determined by the Board, having regard to the extent of partial dependency in each case.

OfCOmpdb WOXL

i sation may be allotted partly to the total and partly to the partial depen- /-

5157 F


Duration of (4) The payments provided under clause (d) of subsection (2) shall continue only so long as, in the opinion of the Board, it might reasonably have been expected had the workman lived he would have continued to contribute to the support of the dependents.

( 5 ) Except as provided in subsection ( 2 ) , payments in respect of a child under the age of sixteen years shall cease when the child attains the age of sixteen years or dies, provided that in case the child at the time of attaining the age of sixteen years is an invalid the payments shall continue until the child ceases to be an invalid. Payments in respect of an invalid child over the age of sixteen years shall cease when the child ceases to be be an invalid or dies.

(6) Where a payment to any one of a number of dependents ceases, the Board may in its discretion readjust the payments to the remaining dependents so that the remaining dependents are thereafter entitled to receive the same compensation as though they had been the only dependents at the time of the death of the workman.

(7) Where an accident happens to a workman in the course of his employment as a direct result of enemy warlike action or counter-action taken against such action, and provision has been made for compensation for the workman or his dependents by the Government of Canada and such compensation is less, equal to, or more than that payable under this Part, the workman or his dependents is or are entitled to compensation under this Part only when the compensation provided by the Government of Canada is less than that provided by this Act and then only to the extent of the difference.

ComDensa- tion Dayable ( 8 ) Subsection ( l ) , as amended and set forth in this section, applies y;it;;ba;d- where the death occurs on or after the first day of November, 1965, and accident. is retroactive to the extent necessary to give full force and effect to this

subsection. (9) Subsection (21, as amended by Order of the Lieutenant-Governor

in Council made and approved pursuant to section 6 2 ~ , applies where death occurred on or before the first day of January, 1965, as well as where death occurred after that date and is retroactive to the extent necessary to give full force and effect to this subsection. R.S. 1948, c. 370, s. 18; 1952, C. 15, s. 4; 1955, c. 91, s. 7; 1959, c. 95, s. 8; 0. in C. No. 3031/65.

oayments.

children. Paymentst0

to Readjustment payment.

Provisionin

dent due to

action-

case of acci-

warlike

Increase in 18~. ( 1 ) Where the level of the Consumer Price Index for the year 1965 or a subsequent year has increased by not less than two per centum over the level of the Consumer Price Index for the year 1964, the Board shall increase the payments under clauses ( a ) , (b), and (c) of subsection (2) of section 18 commencing as of January of the year following that in which the increase in that Index has occurred by two per centum for each two per centum increase in the level of the Consumer Price Index, but this clause shall apply only to the first increase so made.

payments.

5158


(2) Where the level of the Consumer Price Index for the year in which the first increase in payments becomes effective under subsection (1) or for any subsequent year is higher by not less than two per centum than the level of payments under clauses (a), (b), and (c) of subsection (2) of section 18 for the same year, the Board shall increase the payments under clauses (a ) , (b) , and (c) of subsection (2) of section 18 commencing as of January of the following year by two per centum for each two per centum difference in those levels.

(3) For the purpose of determining increases in payments under this section, the level of the Consumer Price Index for the year 1964 shall

Reserves where lesser sum awarded to alien dependents.

Marriage of widow.

Exception.

Permanent total disability.

be taken as 100 and the level of payments as set forth in clauses (a ) , ( b ) , and (c) of subsection (2) of section 18 and applicable before the first increase under this section shall be taken as 100.

(4) Clauses (a ) , ( b ) , and (c) of subsection (2) of section 18 shall be deemed to be amended from time to time to provide for payments at the levels determined under this section.

(5) In order to give effect to this section, the Board shall make payments in accordance with the increases prescribed at the earliest oppor- tunity after the publication of the Consumer Price Index and may make retroactive payments by lump sum, or otherwise. 0. in C. No. 3031/65.

19. Where under the provisions of clause (f) of subsection (2) of section 18 a lesser sum is awarded to dependents residing outside of Canada, the Board shall, notwithstanding such award, create and provide the same reserve as if the award had been made according to the scale provided by such of the clauses ( a ) , ( b ) , ( c ) , ( d ) , or (e) of said subsection as would, except for the provisions of said clause ( f ) , be applicable, and such reserve and any future additions thereto shall form a part of the capitalized reserves provided for under subsection (1) of section 34. R.S. 1948, c. 370, s. 19.

20. (1) If a dependent widow or common-law wife of the deceased marries, the monthly payments to her shall cease, but she is entitled in lieu of them to a sum equal to the monthly payments for two years, but not ot exceed two thousand five hundred dollars.

(2) Subsection (1) does not apply to payments to a widow or common-law wife in respect of a child. R.S. 1948, c. 370, s. 20; 1952, c. 15, s. 5 ; 1959, c. 95, s. 9; 0. in C. No. 3031/65.

21. ( 1 ) Where permanent total disability results from the injury, the compensation shall be a periodical payment to the injured workman equal in amount to seventy-five per centum of his average earnings, and shall be payable during the lifetime of the workman.

f Minimum of$30per

(2) The compensation awarded under this section shall not be less than an mount equal to thirty dollars per week, unless the workman’s average earnings are less than thirty dollars per week, in which case he shall receive compensation in an amount equal to his average earnings.

comvensation

week.

5159 Y

Permanent P.rtial diaabliity.

Facial d i s fimrement.

Increases in under ss. 21 and 22.

Payments

(3) Subsection (2) , as amended and set forth in this section, applies on and after the 6rst day of January, 1965, regardless of the date of the accident, and is retroactive to the extent necessary to give full force and effect to this subsection. R.S. 1948, c. 370, s. 21; 1952, c. 15, s. 6; 1954, c. 54, s. 13; 1955, c. 91, s. 8; 0. in C. No. 3031/65.

CRAP. 413 WORKMEN'S COMPENSATION 9 ELIZ. 2

5160

2%. (1 ) (a) Where permanent partial disability results from the injury, the impairment of earning capacity shall be estimated from the nature and degree of the injury, and the compensation shall be a periodical payment to the injured workman of a s u m equal to seventy-five per centum of the estimated loss of average earnings resulting from such impairment, and shall be payable during the lifetime of the workman or in such other manner as the Board may determine.

(b) The Board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations which may be used as a guide in determining the compensation payable in permanent disability and in temporary partial disability cases.

( c ) Where the Board deems it more equitable, the Board may award compensation for permanent disability having regard to the difference between the average weekly earnings of the workman before the accident and the average amount which he is earning or is able to earn in some suitable occupation after the accident, and the compensation shall be a periodical payment of seventy-five per centum of such difference, and regard shall be had to the workman's fitness to continue in the occupation in which he was injured or to adapt himself to some other suitable employment or business.

( d ) Where permanent partial disability results from the injury, the minimum compensation awarded shall be calculated in the same manner as provided by subsection (2) of section 21 for permanent total disability but to the extent only of the partial disability.

(2) Notwithstanding subsection ( l ) , where in the circumstances the amount which the workman was able to earn before the accident has not been substantially diminished, the Board may, in case the workman is seriously and permanently disfigured about the face or head, or otherwise permanently injured, recognize an impairment of earning capacity, and may allow a lump sum in compensation. R.S. 1948, c. 370, s. 22; 1952, c. 15, s. 7; 1954, c. 54, s. 14; 1959, c. 95, s. 10.

=A. (1) In this section, " base year " means, ( a ) where the accident to the workman occurred before the 6rst

day of January, 1965, the year 1964; or, (b) where the accident to the workman occurred on or after the

6rst day of January, 1965, the year in which the accident occurred.

(2) Where the level of the Consumer Price Index for any year after the base year has increased by not less than two per centum over the level of the Consumer Price Index for the base year, the Board shall *

1960 WORKMEN’S COMPENSATION C ~ P . 413

increase the periodical payment made to a workman under section 21 or 22 commencing as of January of the year following that in which the increase in that Index has occurred by two per centum for each two per centum increase in that level, but this clause shall apply only to the first increase so made.

(3) Where the level of the Consumer Price Index for the year in which the first increase in payments becomes effective under subsection (2) or in any subsequent year is higher by not less than two per centum than the level of payments under section 21 or 22 being made to a workman in that same year, the Board shall increase the periodical payments made to that workman under section 21 or 22 commencing as of January of the following year by two per centum for each two per centum difference in those levels. (4) For the purpose of determining increases under this section, the

level of the Consumer Price Index for 1964 shall be taken as 100 and the level of periodical payments being made to a workman before the first increase under this section shall be taken as 100.

(5) Where an increase in periodical payments is made under this section, the minimum amount specified in subsection (2) of section 21 and subsection (2) of section 23 shall be increased by the same percent- age, and those provisions shall be deemed to be amended accordingly.

(6) In order to give effect to this section, the Board shall make payments in accordance with the increases prescribed at the earliest oppor- tunity after the publication of the Consumer Price Index and may make retroactive payments by lump sum, or otherwise. 0. in C. No. 3031/65.

23. (1) Where temporary total disability results from the injury, the compensation shall be the same as that prescribed by section 21, but is payable onIy so Iong as the disability lasts.

(2) The compensation awarded under this section shall not be less than an amount equal to thirty dollars per week, unless the workman’s average earnings are less than thirty dollars per week, in which case he shall receive compensation in an amount equal to his average earnings.

(3) Subsection (2), as amended and set forth in this section, applies on and after the first day of January, 1965, regardless of the date of the accident, and is retroactive to the extent necessary to give full force and effect to this subsection. R.S. 1948, c. 370, s. 23; 1952, c. 15, s. 8; 1955, c. 91, s. 9; 0. in C. No. 3031/65.

2%. (1) Where temporary partial disability results from the injury, the compensation shall be the same as that prescribed by section 22 but is payable only so long as the disability lasts.

(2) Where temporary partial disability results from the injury, the minimum compensation awarded shall be calculated in the same manner as prescribed by subsection (2) of section 23 for temporary total disability but to the extent only of the partial disability. R.S. 1948, c. 370, c. 24; 1954, c. 54, s. 15; 1959, c. 95, s. 11.

TemWrary

disabiuty.

Minimum Of S3O per

total

corncansation

week.

Tomuoran partial dimbiuty-

5161


Medical aid.

Bmcrpency treatment.

Employers may be

to orovidc medical aid.

Aooroved plans of medical aid.

8 U t h O l h d

25. (1 ) In addition to the other compensation provided by this Part, the Board has authority to furnish or provide for the injured workman such medical, surgical, hospital, and other treatment, transportation, nursing, medicines, crutches, and apparatus, including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability to cure and relieve from the effects of the injury, and the Board has full power to adopt rules and regulations with respect to furnishing medical aid to injured workmen entitled thereto and for the payment thereof. The Board may make a daily allowance to an injured workman for his subsistence when, under its direction, he is undergoing treatment at a place other than the place wherein he resides and continues to support and maintain his place of residence. The power of the Board to make a daily allowance for subsistence under this section extends to any injured workman who receives compensation regardless of the date on which he first became entitled to compensation.

(2) Where in a case of emergency, or for other justifiable cause, a physician or qualified practitioner other than the one provided by the Board is called in to treat the injured workman, and if the Board finds there was such a justifiable cause and that the charge for the services is reasonable, the cost of the services shall be paid by the Board.

(3) The Board may in its discretion authorize employers to furnish or provide medical aid at the expense of the Board and upon terms fixed by it.

(4) Any plan for providing medical aid in force between an employer and his workmen or otherwise available to the workmen, and which in the opinion of the Board, after investigation of the facts, is found on the whole to be not less efficient in the interests both of the employer and of the general body of workmen than the provisions for medical aid contained in this section, may by order of the Board, subject to such conditions as the Board may require, be declared to be a plan approved by the Board. So long as the order of the Board approving of the plan is in force and unrevoked the provisions of subsections ( 1 ) , (2), and (3) of this section shall not apply to any of the workmen in any employment embraced in the plan, and during the like period the provisions of section 12 of the Muster and Servant Act do not apply in respect of any such workmen. When any such plan is no longer approved by the Board or for any reason is discontinued or revoked, the provisions of subsections ( I ) , (2). and (3) apply with respect to further medical aid required for injuries sustained during the period of approval, and the cost of such medical aid may be charged in such a manner as the Board may deem proper. Upon the making of the order approving a plan under this subsection, the employer shall from time to time deduct the amount of the monthly or other periodical payment settled by the plan from the moneys earned by the respective workmen, and shall pay the same forthwith to the person entitled thereto as settled by the plan or

- ‘i) n 5 1 6 ~


determined by the Board. If the employer fails, neglects, or refuses to make such deductions, or any of them, or to pay over the same to the person entitled thereto, the Board may summarily determine the amount in arrear, and may enforce payment thereof from the employer as a debt due to the Board, and for that purpose the Board has the like powers and is entitled to the like remedies as it possesses or is entitled to in respect of assessments. Upon recovery of the amount, the Board shall pay the same to the person entitled thereto.

Supervision of medical (5 ) Medical aid furnished or provided under any of the preceding *idbYBoard. subsections of this section shall at all times be subject to the direction,

supervision, and control of the Board; and the Board has full power and authority to contract with doctors, nurses, or other persons authorized to treat human ailments, hospitals, and other institutions for any medical aid required, and to agree on a scale of fees or remuneration for such medical aid; and all questions as to the necessity, character, and sufficiency of any medical aid furnished or to be furnished shall be determined by the Board. The fees or remuneration for medical aid furnished under this Act shall not be more than would be properly and reasonably charged the workman if himself paying, and the amount thereof shall be k e d and determined by the Board, and no action for any amount larger than that fixed by the Board shall lie in respect of medical aid.

(6) In the case of any workman employed as a master, mate, Caseofwork- men emuloved on vessels.

Selection of physician.

engineer, seaman, sailor, steward, fireman, or in any other capacity on board of any vessel on which duty has been paid or is payable under Part V of the Canada Shipping Act, 1934, of Canada, the provisions of subsections ( 1 ) to (5) do not apply to that workman during the period in respect of which such duty has been paid or is payable, but such workman is entitled to any additional medical aid provided under this section that is not furnished under the Canada Shipping Act, 1934. The Board may, in its discretion, pay the medical costs of such workman employed on a vessel when, for reasons beyond his control, he cannot be furnished prompt, necessary, or emergent medical care under Part V of the Canada Shipping Act, 1934.

( 7 ) Without in any way limiting the power of the Board under this section to supervise and provide for the furnishing of medical aid in every case where the Board is of the opinion that the exercise of such power is expedient, the Board shall under this section, in all cases where the circumstances, in the opinion of the Board, do not require the exercise of such power in order to procure prompt and efficient medical aid for the injured workman, permit medical aid to be administered, so far as the selection of a physician or qualified practitioner is concerned, by the physician or qualified practitioner who may be selected or employed by the injured workman or his employer, to the end that so far as possible all competent physicians or qualified practitioners without distinction may be employed and be available to injured workmen.

5163

CHAP. 413 WORKMEN’S COMPENSATION 9 EL= 2

xw-a or .rcibd.l -her. ment and repair of

(8) The Board has authority to assume the responsibility of replace-

(a) artificial appliances including artificial members damaged or broken as the result of an accident arising out of and in the course of the employment of the workman; and

(b) eye-glasses and dentures broken as a result of an accident arising out of and in the course of the employment if such breakage is accompanied by objective signs of pe.rsonal injury. R.S. 1948, c. 370, s. 25; 1952, c. 15, s. 9; 1954, c. 54, s. 16; 1955, c. 91, s. 10; 1959, c. 95, s. 12.

28. Employers in any industry in which it is deemed proper may be required by the Board to maintain, as may be directed by the Board, such first-aid appliances and service as the Board may direct, and the Board may make such order respecting the expense thereof as may be deemed just. Where any employer fails, neglects, or refuses to install such first- aid appliances and service as the Board directs under this section, the Board may install such first-aid appliances and service, and charge the cost thereof to the employer; and the Board may enforce payment thereof, and for that purpose has the same powers and is entitled to the same remedies for enforcing payment as it possesses or is entitled to in respect of assessments. R.S. 1948, c. 370, s. 26.

M*- *m- of first-dd and service.

Average eardnm. 27. (1 ) The average earnings and earning capacity of a workman

shall be determined with reference to the average earnings and earning capacity at the time of the accident, and may be calculated upon the daily, weekly, or monthly wages or other regular remuneration which the workman was receiving at the time of the accident, or upon the average yearly earnings of the workman for one or more years prior to the accident, or upon the probable yearly earning capacity of the workman at the time of the accident as may appear to the Board best to represent the actual loss of earnings suffered by the workman by reason of the injury, but not so as in any case to exceed the maximum wage rate, except that where owing to the shortness of time during which the workman was in the employment of his employer or in any employment or the casual nature of his employment or the terms of it, it is inequitable to compute average earnings in the manner hereinbefore described in this subsection, regard may be had to the average daily, weekly, or monthly amount which, as shown by the records of the Board, was being earned during the one or more years or other period previous to the accident by a person in the same or similar grade or class of employment.

(2) Notwithstanding any other provisions of this Act, as from the first day of January, 1955, all periodical payments awarded as compensation to workmen injured prior to the eighteenth day of March, 1943, who on the first day of January, 1955, are in receipt of such periodical payments, shall be increased as follows:-

5164


(a) For permanent total disability, (i) the compensation rate shall be sixty-six and two-

thirds per centum; and (ii) the average earnings calculated under subsection

(1) of this section shall be the actual average earnings of the injured workman but not less than two thousand dollars per annum and not more than two thousand five hundred dollars per annum. No increase in periodical payments shall commence to accrue as a result of such recalculation until the first day of January, 1955:

(b) For permanent partial disability, such periodical payments shall be recalculated on a basis consistent with that described in clause (a ) of this subsection, but no increase in periodical payments shall commence to accrue as a result of such recalculation until the first day of January, 1955, and in no case shall the recalculation result in a revision of the date of expiry of any periodical payment:

( c ) The increased periodical payments shall be computed in each case by the Board.

(3) The increases in periodical payments provided by subsection (2) shall also apply to periodical payments for permanent total disability and permanent partial disability awarded on and after the first day of January, 1955, for injuries sustained by workmen prior to the eighteenth day of March, 1943.

(4) Where the workman was at the date of the accident under twenty-one years of age, and it is established to the satisfaction of the Board that under normal conditions his wages would probably increase, the fact shall be considered in arriving at his average earnings or earning capacity.

( 5 ) Notwithstanding the date upon which the accident occurred, compensation with respect to temporary total or temporary partial dis- abiity for any period on or after the first day of April, 1959, with respect to any accident or claim which occurred prior to the first day of Decem- ber, 1949, shall be paid at the rate of seventy-five per centum of the earning capacity or average earnings of the workman last preceding such period but otherwise compensation shall be calculated under subsection (1) of this section. R.S. 1948, c. 370, s. 27; 1952, c. 15, s. 10; 1954, c. 54, ss. 17, 18; 1955, c. 91, s. 11; 1959, c. 95, s. 13; 0. in C. No. 3031/65.

MhOn.

M*m wage rate. 2 7 ~ . ( 1 ) Until increased under subsection (2), the maximum wage rate under subsection (1) of section 27 is six thousand six hundred dollars per year.

(2) When the records of the Board for a calendar year indicate that (a) not less than twenty per centum of the workmen on whose

claims fist payments were made during that year had actual 5164-1


gross earnings for the twelvemonth period immediately prior to the accident of more than one thousand dollars in excess of the maximum wage rate under subsection ( 1 ) of section 27; and

(b) not less than forty-five per centum of the workmen on whose claims lint payments were made during that year had actual gross earnings for the twelve-month period immediately prior to the accident in excess of the maximum wage rate under subsection (1) of section 27,

the Board shall, for the succeeding calendar year, increase the maximum wage rate under subsection (1) of section 27 by one thousand dollars. 0. in C. No. 3031/65.

Deductlonr from am- Ocnution in certain cases.

28. In fixing the amount of a periodical payment of compensation, regard shall be had to any payment, allowance, or benefit which the workman may receive from his employer during the period of his disability, including any pension, gratuity, or other allowance provided wholly at the expense of the employer; and any s u m deducted under this section from the compensation otherwise payable may be paid to the employer out of the Accident Fund. R.S. 1948, c. 370, s. 28.

Payment of =ation.

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

cornpen-

Commutation (2) The Board may in its discretion of oayments. (a) commute the whole or any part of the periodical payments due

or payable to the injured workman or any dependent to one or more lump-sum payments to be applied as directed by the Board; andmay

( b ) divide into periodical payments any compensation payable in a lump sum.

(3) In case of death or permanent total disability or in case of permanent partial disability where the impairment of the earning capacity of the workman exceeds ten per centum of his earning capacity at the time of the accident, no commutation of periodical payments shall be made under subsection (2) except upon the application of and at an amount agreed to by the dependent or workman entitled to such payments.

(4) Notwithstanding the provisions of subsection (3) , the Board may, in its discretion, commute the periodical payments payable under clause (f) of subsection (2) of section 18 to dependents residing outside of Canada for a lump sum, and may apply that lump sum to or for the use

of a-umion payments onapoll- d o n .

ammutation

to d e n of payments

dependents.

5 164-2


and benefit of those dependents in such manner as the Board may determine to be most for the advantage of the dependents. R.S. 1948, c. 370, s. 29.

Part I , Division (4).-Accident Fund and Assessments

30. For the purpose of assessment in order to create and maintain a fund, to be called the “Accident Fund,” for the payment of the compensation, outlays, and expenses under this Part, all industries within the

Classification of industries.

5 164-3


rcope of this Part shall, subject to sections 31 and 32, be divided into the following classes:-

Class 1 .-Lumbering; logging; log-hauling; operation of sawmills, shingle-mills, lath-mills, planing-mills; manufacture of sash and doors, veneer, plywood, wooden boxes, pulp and paper, and creosoting-works; shingle staining and dipping:

Class 3.Xoal-mining and operation of coal-mining railways: Class 4.-Mining (other than coal); reduction of ores and smelt-

ing; assaying; quarrying; stone-crushing; manufacture of brick, lime, or cement; operation of sand, shale, and gravel pits; peat-processing; manufacture of cement blocks, tiles, terra-cotta, stucco, and gypsum; diamond-drilling :

Class 6.-Manufacture of cans, tinware, artificial ice, paint, card- board boxes, shoes, leather, small metalware, soap, biscuits, confectionery, rubber mats, tires, belting, hose, and plastics; porcelain enamelling; manufacture of matches, trunks, bags, iron beds, bed-springs, and mattresses; manufacture and handling of acetylene gas, oxygen gas, and propane gas; automobile and motor-cycle repairing, servicing, and storage or selling; bicycle-repairing; service-stations; armature-winding (small motors-no installation work); manufacture of wire fence and wire products; bridge operation; manufacture and repair of furs and leather goods, shoe-repairing; dental laboratories; industrial testing; manufacture of peanut butter, spices, coffee, drags, extracts, cosmetics, jewellery, and optical goods; watch-repairing; manufacture of stationery, starch, polish, glue, ink, upholstery, and lamp-shades; carpet and linoleum laying; manufacture and repair of vacuum-cleaners, typewrit- ers, adding-machines, cash registers, radios, pianos, household electrical appliances, X-ray and physiotherapy equipment; distribution and servicing of automatic music-machines; picture-framing; manufacture of small rubber goods; silver- and electro-plating; bevelling; glass-works; manufacture of plas- ter and clay ornaments and pots; collection and distillation of resinous products; exterminating and fumigating; warehous- ing; installation and repair of bowling and billiard equipment; cabinetmaking; manufacture of furniture, excelsior, pails, tubs, abrasives, wooden co&m, staves, heads, artificial limbs, brooms, mops, wooden toys, spokes, sails, canvaswork, tents, awnings, ropes, twines, and wooden pipe; cooperage; carpen- ter-shop; woodworking plants; manufacture of tar, building and asphalt paper, asphalt roohg, asphalt shingles, pitch, charcoal, and arsenical products; sintering tungsten; manufacture of coconut-oil; construction of rowboats and canoes; operation of parks, amusement parks, cemeteries, horse-race courses, ice-rinks, roller-rinks, and bowling-alleys (other than

5165

CHAP. 413

Clas

5166

WORKMEN’S COMPENSATION 9 ELIZ. 2

municipal), dance-halls as a business; manufacture of alcoholic and non-alcoholic beverages, sugar, food products not elsewhere specified, and cigars; knitting-mills; manufacture of cloth, clothing, hats, buttons, drapes, cushions, auto-bags, textiles, and carpets; butcher-shops; bakeries; retail stores; photo-taking or photo-printing shops; private schools; barber- shops; hairdressing establishments and beauty-parlours; steam baths; auctioneering establishments; billiard-parlours; commercial buildings or apartment buildings where rooms, suites, or space is rented to a tenant; canning and packing of fruits, vegetables, and milk; manufacture of dairy products and ice- cream; rice-milling; cold-storage plants; landscape or other gardening (exclusive of market-gardening) and horticultural nurseries; greenhouse operations; cleaning, pressing, and dyeing; laundries; hospitals; nursing homes; veterinary hospitals; lodging-houses having ten or more bedrooms; hotels; restaurants; catering; private clubs; trade-unions; beer- parlours; licensed public houses or lounges; land-surveying; flour-milling; handling grain; oil refining and distribution; meat-packing houses; stockyards; tanneries; printing, lith- ographing, and engraving; golf clubs and baseball parks (other than municipal) ; motion-picture houses and other theatres; trucking and hauling (exclusive of log-hauling) ; ice- harvesting and ice-delivery; coal, sawdust, wood, retail lumber, and builders’ supply yards; operation of travelling wood- saws; wholesale establishments; geophysical exploration:

s 7.-Construction. repair, and servicing of aeroplanes or lighter-than-air machines; aerial testing or flying or demonstrating and aerial transportation and aerial advertising; operation of airfields; lathing, painting, and plastering; window- cleaning; insulation of buildings; building construction, including non-industrial construction having a value of two thousand five hundred dollars or more; structural carpentry, masonry, reinforced concrete and excavation, erection of tanks and aerials; installation and removal of boilers, engines, and machinery; installation of marine elevators, iron stairs and ornamental-iron work; construction of reservoirs, dams, and flumes; oil-well drilling; dredging; manufacture of stoves, furnaces, engines, boilers, guns, armaments, structural steel, lead articles, babbit, nuts, bolts, nails, and spikes; machine- shops; foundries; blacksmith-shops; acetylene and electric welding; saw manufacture and repair; handling machinery and junk; plumbing and heating; manufacture, installation, and repair of refrigerators not elsewhere specified; sheet-metal construction, erection, repair, and manufacture; tar-md- gravel or asphalted roofing; installation and repair of ele-

WORKMEN’S COMPENSATION CHAP, 413

vators; rust-proofing; monument lettering and setting; stone dressing and cutting; sand-blasting; electric wiring and armature-winding not elsewhere specified; railway construction and demolition not elsewhere specified; floor-laying, tile- setting, and terrazzo work; janitor service not elsewhere specified and floor-polishing and floor-waxing service; rolling- mills; marine-railway operation and dry-dock operation; construction and repair of vessels not elsewhere specified; ship-lining; construction and repair of piers, wharves, or dry- docks; pile-driving; tunnelling and drilling; construction of training-walls to deflect water; welldrilling not elsewhere specified and well-digging; bridge-building; road making and repairs; land clearing and grading; airport construction; surfacing of roads, runways, and sidewalks; construction, operation, and maintenance of sewers, waterworks, and irrigation-works not elsewhere specified; steam-cleaning of buildings; steel-frame erection and repair; moving of buildings; demolition of buildings; motion-picture production:

Class 8 .-Construction and operation of electric railways, electric light and power plants, lines, and appliances, gasworks, telegraph and telephone systems; auto-passenger transportation; funeral undertaking; broadcasting-stations:

Class 9.-Navigation; stevedoring; wharf operations; marine salvage; canning and packing of fish; manufacture of fish oil and fertilizer; fishing and whaling; oyster cultivation; kelp collection; shipping operations not elsewhere Specified:

Class 1 O.-Canadian Pacific Railway Company; Canadian Pacific Steamships, Limited; Esquimalt and Nanaimo Railway Com- pany; Kettle Valley Railway Company; Canadian Pacific Express Company; Consolidated Mining and Smelting Com- pany of Canada, Limited; West Kootenay Power and Light Company, Limited; Canadian Pacific Air Lines, Limited; the Pullman Company; Vancouver Hotel Company, Limited; Canada Colonization Association; Island Freight Service, Limited; Mills Carriers, Limited; Langara Golf Links; and their contractors :

Class 11 .-Such operations of members of the British Columbia Lumber Manufacturers’ Association as are placed in this class by the Board for purposes of assessment:

Class 12.-Canadian National Railway Company; Canadian National Express Company; Canadian Northern Railway Company; Canadian Northern Pacific Railway Company; Canadian National Telegraph Company; Grand Trunk Pacific Railway Company; Grand Trunk Pacific Development Com- pany, Limited; Canadian National Steamship Company, Limited; Trans-Canada Air Lines; and their contractors:

5167

CHAP, 413

Creation and Itarranm m a t of duKI.

A d b u n a t of class funds.

WORKMEN’S COMPENSATION 9 E ~ 1 z . 2

Class 13.-The Crown in right of the Province and any permanent Board or Commission of the Crown in right of the Province:

Class 14.-Municipalities and municipal boards: Class 16.-Manufacture of explosives, fireworks, fuse, chemicals,

or nitrogen products not elsewhere specified: Class 18.-The Great Northern Railway Company; Railway

Express Agency (Incorporated) ; and their contractors: Class 20.Northern Alberta Railway Company. R.S. 1948,

c. 370, s. 30; 1954, c. 54, s. 20; 1955, c. 91, s. 12.

31. (1) The Board may ( a ) create new classes in addition to those mentioned in section 30; (6) consolidate or rearrange from time to time any of the existing

classes; and may ( c ) withdraw from a class any industry or any part of any class or

sub-class included therein and transfer it wholly or in part to any other class, or form it into a separate class.

(2) In case of any rearrangement of the classes, or the withdrawal of an industry from any class, the Board may make such adjustment and disposition of the funds, reserves, and accounts of the classes affected as may be deemed just and expedient. R.S. 1948, c. 370, s. 31.

32. The Board shall assign every industry within the scope of this Part to its proper class; and where any industry includes several departments assignable to different classes, the Board may either assign such industry to the class of its principal or chief department, or may, for the purpose of this Part, divide such industry into two or more departments, assigning each of such departments to its proper class. R.S. 1948, e. 370, s. 32.

Bmm~dua-

umimdto tn to be

proper class.

B I ~ W W ~ ~ to furnil #tl- m w ~ o f payrolls.

33. ( 1 ) Every employer shall keep at all times at some place in the Province, of the location of which he has given notice to the Board, complete and accurate particulars of his payrolls, and shall whenever he becomes an employer within the meaning of this Part, and at such other times as may be required by the regulations or by the Board, cause to be furnished to the Board an estimate of the probable amount of the payroll of each of his industries within the scope of this Part for the year next following, together with such further and other information as may be required by the Board; and every employer shall, at or after the close of each calendar year, and at such other times as may be required by the Board, furnish certified copies or reports of his payrolls, veriiied by statutory declaration; and in case of failure, neglect, or refusal on the part of the employer to furnish the estimate of the probable amount of his payroll, or the certified copies or reports of his payrolls, or the other information required by this subsection, the Board has power to make its own estimate of such payrolls, and to make its assessment and levy on that estimate, and the employer is bound thereby; and where a

5168

1960

Method of computing payroll.

Noncom- Dliaoce with subsec. (1) an offence.

Assessments to DrOvide Accident Fund.

kssessments, how made.


workman within the scope of this Part works at a nominal wage or no wage, the amount of his average earnings for purposes of this Part may be fixed by the Board.

(2) In computing the amount of the payroll of any industry for the purpose of assessment, regard shall be had only to such portion of the payroll as represents workmen and employment within the scope of this Part; and where the wages of any workman exceed the maximum wage for one year as fixed or increased under section 2 7 ~ , a deduction shall be made in respect of the excess; and where in the opinion of the Board the wages of any workman are shown to exceed the maximum wage rate as fixed or increased under section 2 7 ~ , a deduction may be. made with respect to the portion in excess of that rate.

(3 ) If an employer does not comply with the provisions of subsection ( 1 ) , or if any statement made in pursuance of its provisions is not a true and accurate statement of any of the matters required to be set forth in it, the employer for every such non-compliance and for every such statement is guilty of an offence against this Part. R.S. 1948, c. 370, s. 33; 1952, c. 15, s. 12; 1954, c. 54, ss. 21, 22; 1955, c. 91, s. 13; 1959, c. 95, s. 14; 0. in C. No. 3031/65.

34. (1) For the purpose of creating and maintaining an adequate Accident Fund, the Board shall every year assess and levy upon and collect from the employers in each class by an assessment or by assessments made from time to time rated upon the payroll, or by an assessment or by assessments made from time to time rated upon a unit of production, or in such manner as the Board may deem proper, sufficient funds, according to an estimate to be made by the Board, but the established practice of assessment and levy shall be varied only with the approval of the Lieutenant-Governor in Council,

( a ) to meet all amounts payable from the Accident Fund under this Part during the year;

( b ) to provide a reserve by way of a contingent fund in aid of industries or classes which may become depleted or extin- guished;

( c ) to provide in each year capitalized reserves sufficient to meet the periodical payments of compensation accruing in future years in respect of ail accidents which occur during the year; and

( d ) to provide a reserve fund to be used to meet the loss arising from any disaster or other circumstance which, in the opinion of the Board, would unfairly burden the employers in any class.

(2) Assessments may be made in such manner and form and by such procedure as the Board may deem adequate and expedient, and may be general as applicable to any class or sub-class, or special as applicable to any industry or part or department of an industry.

5169 16


Assessments. when collected.

Addition to usual assessments.

Additional assessments.

Notice of assessments.

Continuinn Uabllitv in case of omission to essess.

Excess funds may be transferred to cauitalized reserves.

" S l l i C ~ ~ Fund.

Assessments to provide silicosis Fund.

(3) Assessments may, wherever it is deemed expedient, be collected in half-yearly, quarterly, or monthly instalments, or otherwise; and where it appears that the funds in any class are sufficient for the time being, any instalment may be abated or its collection deferred.

(4) The moneys necessary to provide compensation or additional compensation in respect of accidents may be levied and collected by the Board from the employers carrying on industries under the Act, without regard to the date of the happening of the accident or the period during which the employer carried on in an industry under the Act, in such manner and at such time or times as the Board may deem equitable; and such levy and collection may be by way of an addition to the usual assessments or by levy of special or additional assessment or assessments.

(5) In case the estimated assessments in any class prove insufficient, the Board may make such further assessments and levies as may be necessary, or the Board may temporarily advance the amount of any deficiency out of any reserve provided for that purpose, and add such amount to any subsequent assessments.

(6) The Board shall give notice to each employer of the amount of each assessment due from time to time in respect of his industry and the time when the same is payable. The notice may be sent by post to the employer, and shall be deemed to be given to him on the day on which the notice is mailed.

(7) If far any reason an employer liable to assessment is not assessed in any year he is nevertheless liable to pay to the Board the amount for which he should have been assessed, and payment of that amount may be enforced in the same manner as the payment of an assessment may be enforced.

(8) If it is found, on an estimate made by the Board, that more than sufficient funds have been provided for the purposes set out in clauses (a), (b) , and ( d ) of subsection (1) of this section, any excess may be transferred to the capitalized reserves. R.S. 1948, c. 370, s. 34; 1952, c. 15, s. 13; 1954, c. 54, s. 23; 1959, c. 95, s. 15.

35. (1) Notwithstanding anything contained in this Act, the Board is hereby authorized to provide a separate fund, which shall be known as the " Silicosis Fund."

(2) For the purpose of creating and maintaining the Silicosis Fund the Board shall every year assess and levy upon and collect from the employers in the metalliferous-mining and the coal-mining industries, and in such other industries and occupations as the Board may determine that there is a liability for payment of compensation for silicosis, by an assessment or by assessments made from time to time rated upon the payroll, or in such other manner as the Board may deem proper, sufficient funds, according to an estimate or estimates to be made by the Board,

5170


Deferred assessments.

Provisions applicable.

Classification of rates.

Power of Board to

provisions.

Contributiw from Pmv- ioce to Acd- dent h o d .

(a) to meet all amounts payable from the Silicosis Fund during the year;

( b ) to provide capitalized reserves sufficient to meet the periodical payments of compensation accruing in future years in respect of claims from silicosis allowed during the year; and

(c) to defray the expense of administering the silicosis provisions herein.

( 3 ) In the event that the said estimate or estimates prove insufficient for the purposes of this section in any year, the deficiency in the Silicosis Fund may be collected by assessments in any subsequent year or years. Should the Board so determine, the collection of a portion of such compensation cost may be spread over a number of years. (4) For the purpose of making and collecting the assessments for the

Silicosis Fund, all the provisions of Part I relating to the making and collection of assessments shall apply.

( 5 ) The Board may establish such sub-classifications, differentials, and proportions in the rates as between the different kinds of employment in which silicosis is an industrial disease as may be deemed just; and where, in the opinion of the Board, any particular mine, plant, or occupation is shown to be so circumstanced or conducted that the silicosis cost or hazard differs from the average of the class or subclass to which the mine, plant, or occupation is assigned, the Board may confer or impose upon that mine, plant, or occupation a special rate, differential, or assessment to correspond with the relative silicosis cost or hazard of that mine, plant, or occupation; and for that purpose may adopt a system of experience rating or schedule rating, or a combination of those systems, in such manner as to take account of the peculiar silicosis cost or hazard of the individual mine, plant, or occupation of each employer.

(6) The Board has authority to bring within the silicosis provisions of this Act such other industries or occupations as it may from time to time determine, and upon such conditions as are applicable to workmen employed in the metalliferous-mining industry, and generally to prescribe such other requirements as it may deem advisable. R.S. 1948, c. 370, s. 35.

36. (1) To assist in defraying the expenses incurred in the administration of this Part, such annual sum as the Lieutenant-Governor in Council may direct, not exceeding fifty thousand dollars, shall be paid out of the Consolidated Revenue Fund to the Board to form part of the Accident Fund.

(2) There shall be paid out of the Consolidated Revenue Fund to the Board to form part of the Accident and Silicosis Funds, in four equal annual instalments commencing the first day of May, 1966, sums sufficient to provide fifty per centum of the present and future costs of the increases in compensation to those workmen and dependents whose

5171


Classification of rates.

Temporary industries.

Default constituted an offence.

Collection of assessments by suit.

s v proceeding nithout suit.

awards arose out of accident or deaths that occurred prior to the first day of January, 1966, resulting from the amendments made by the Lieutenant-Governor in Council pursuant to section 6 2 ~ , including future increases due to any rise of the Consumer Price Index, and including additional costs resulting from the extension of age-limits of dependent children entitled to payments under section 18. R.S. 1948, c. 370, s. 36; 0. in C. No. 3031/65.

37. The Board shall establish such sub-classifications, differentials, and proportions in the rates as between the different kinds of employment in the same class as may be deemed just; and where in the opinion of the Board any particular industry or plant is shown to be so circumstanced or conducted that the accident cost or hazard differs from the average of the class or sub-class to which the industry or plant is assigned, the Board shall confer or impose upon that industry or plant a special rate, differential, or assessment to correspond with the relative accident cost or hazard of that industry or plant; and for that purpose may adopt a system of experience rating or schedule rating, or a combination of those systems, in such a manner as to take account of the peculiar accident cost or hazard of the individual plant or undertaking of each employer. R.S. 1948. c. 370. s. 37.

38. (1) Where an employer engages in any of the industries within the scope of this Part and has not been assessed in respect of it, the Board, if it is of 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 Board of a sum sufficient to pay the assessment for which the employer would be liable if the industry had been in existence when the last preceding assessment was made.

(2) Every employer who makes default in complying with any re- quirement of the Board under subsection (1) is guilty of an offence against this Part. R.S. 1948, c. 370, s. 38.

39. (1) If any assessment or part thereof is not duly paid in accordance with the terms of the assessment and levy, the Board has a right of action against the defaulting employer in respect of the amount unpaid, together with costs of the action.

(2) Where default is made in the payment of any assessment, or any part of it, the Board 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 such certificate, or a copy of it certified by the Secretary under the seal of the Board to be a true copy, may be filed with any District Registrar of the Supreme Court, or with the Registrar of any County Court, and when so filed becomes an order of that Court and may be enforced as a judgment of the Court against such person for the amount mentioned in the certificate. R.S. 1948, c. 370, s. 39.

5172

1960

Power to restrain carrying-on of industry where assessments in default.

Moneys contributed towards medical aid.


40. Where an employer makes default in the payment of an assessment, and an execution issued upon a judgment entered with respect to the assessment is returned with a certificate from a Sheriff or his deputy that he was unable wholly to satisfy the same, and where the judgment debtor continues to carry on an industry within the scope of this Part in which workmen are employed, any Judge of the Supreme Court, upon an application made on behalf of the Board by motion in Chambers, without the issue of any writ or the commencement of any action, may restrain the judgment debtor from carrying on any industry within the scope of this Part until the amount due on the execution, and all assessments made by the Board, and the costs of the application are paid. R.S. 1948, c. 370, s. 40.

41. All moneys in the hands of the Board for the purpose of paying the cost of medical aid and all moneys hereafter collected for the medical

5172-1


Penalty for default In oayment of assessments.

Liability to pay capital- i u d value of the commnsation accruing.

Board may relieve from penalty.

Liability of emvloyer where accident due to his failure to comply with regulations.

Separate accounts to be kept for each class.

aid fund shall, as and when required to pay the cost of medical aid with respect to accidents without regard to the date of the happening of the accident, be transferred or credited to the several classes in which the employers were assessed, and all accounts for medical aid rendered or to be rendered shall be paid out of the class funds in the same manner as the other compensation provided under this Part. R.S. 1948, c. 370, s. 41.

42. (1) If any assessment levied under any provision of this Part is not paid at the time when it becomes payable, the defaulting employer is liable to pay and shall pay as a penalty for his default such a percent- age upon the amount unpaid as may be prescribed by the regulations or may be determined by the Board, and the penalty shall be added to the amount of the assessment and become a part thereof.

(2) Any employer who refuses or neglects to make or transmit any payroll return or other statement required to be furnished by him under the provisions of subsection ( 1 ) of section 33, or who refuses or neglects to pay any assessment, or the provisional amount of any assessment, or any instalment or part thereof, shall, in addition to any penalty or other liability to which he may be subject, pay to the Board the full amount or capitalized value, as determined by the Board, of the compensation payable in respect of any accident to a workman in his employ which happens during the period of such default, and the payment of such amount may be enforced in the same manner as the payment of an assessment may be enforced.

(3) The Board, if satisfied that such default was excusable, may in any case relieve the employer in whole or in part from liability under this section. R.S. 1948, c. 370, s. 42.

43. Where an accident causing injury to a workman in respect of which compensation is payable has occurred, and where, in the opinion of the Board, the accident was due entirely to the gross negligence of the employer or to the failure of the employer to adopt reasonable means for the prevention of accidents or to comply with the directions of the Board, or with the regulations made under this Part, the Board may levy and collect from the employer as a contribution to the Accident Fund the amount of the compensation payable in respect of the injury, and not exceeding in any case one thousand dollars, and the payment of such sum may be enforced in the same manner as the payment of an assessment may beenforced. R.S. 1948, c. 370, s. 43; 1959, c. 95, s. 16.

44. ( 1 ) Separate accounts shall be kept of the amounts colIected and expended in respect of each class and of each fund set aside by way of reserve or as a special fund for any purpose, but for the purpose of paying compensation the Accident Fund shall, nevertheless, be deemed one and indivisible.

5173


Interest on

class fund*. (2) If a deficit occurs in the fund of any class or sub-class, the Board

may charge to that class or sub-class interest on the amount of the deficit at such rate as will reimburse the Accident Fund for any loss sustained by reason of the deficit, and may apportion the amount of the interest received and credit the same to the class or sub-class funds or other fund from which moneys were advanced to meet the deficit. R.S. 1948, c. 370, s. 44.

deficits in

Annual

assessmc~~m. 45. ( 1 ) As soon as practicable in each year the amount of the assess-

ment for the preceding calendar year shall be adjusted upon the estimated requirements of the class and upon the correctly ascertained payroll of each industry, and the employer shall forthwith make up and pay to the Board any deficiency, or the Board shall refund to the employer any surplus, or credit the same upon the succeeding assessment as the case may require. Where the ascertained payroll exceeds the estimate thereof on which the employer was assessed, the Board may on the adjustment charge to that employer interest on the amount of the deficiency in the assessment at such rate as in its opinion will reimburse the Accident Fund for any loss sustained by reason of the deficiency; and the interest shall be added to the amount of the deficiency, and becomes a part thereof.

(2) Where in any industry a change of ownership or employership has occurred, the Board may levy any part of such deficiency on either or any of the successive owners or employers, or pay or credit to any one or more of the owners such surplus as the case may require, but as between or amongst the successive owners the assessments in respect of such employment are, in the absence of an agreement between the respective owners or employers determining the same, apportionable, as nearly as may be, in accordance with the proportions of the payrolls of the respective periods of ownership or employership. R.S. 1948,~. 370, s. 45.

adjustment of

A d ~ m e n t in case of change of ownenhio.

Collection of assessments from contractors.

46. Where any work within the scope of this Part is performed under contract for any municipal corporation, or for any board or commission having the management of any work or service operated for a municipal corporation, any assessment in respect of the work may be paid by the corporation, board, or commission, as the case may be, and the amount of the assessment may be deducted from any moneys due the contractor in respect of the work. R.S. 1948, c. 370, s. 46.

Contractor and person for whom work done both made liable.

47. (1 ) Where any work within the scope of this Part is undertaken for any person by a contractor, both the contractor and the person for whom the work is undertaken are liable for the amount of any assessment in respect thereof, and the assessment may be levied upon and collected from either of them, or partly from one and partly from the other; but in the absence of any term in the contract to the contrary the contractor is, as between himself and the person for whom the work is performed, primarily liable for the amount of the assessment.

5174


Cantractor M d Nb- contractor both made liable.

Workmen of unassessed contractor in an industry deemed workmen of person carrying on the industry.

Priority as to amounts due to Board.

Workman or dependent to give notice of accident.

In case of industrial disease.

Service of notice.

17

(2) Where any work within the scope of this Part is performed under sub-contract, both the contractor and the sub-contractor are liable for the amount of the assessments in respect of the work; and the assessments may be levied upon and collected from either, or partly from one and partly from the other; but in the absence of any term in the sub- contract to the contrary the sub-contractor is, as between himself and the contractor, primarily liable for the assessments.

(3) Where any contractor or sub-contractor who is executing any work in or for the purposes of an industry withii the scope of this Part carried on by another person (in this subsection referred to as the “ principal ”) is not assessed with respect to the work so executed, the workmen of the contractor or sub-contractor may in the discretion of the Board be deemed workmen of the principal with respect to the industry so carried on by him. R.S. 1948, c. 370, s. 47.

48. Notwithstanding anything contained in any other Act, the amount due to the Board by an employer upon any assessment made under this Act, or in respect of any amount which the employer is required to pay to the Board under any of its provisions, or upon any judgment therefor, constitutes a lien in favour of the Board payable in priority over all liens, charges, or mortgages of every person, whenever created or to be created, with respect to the property, real, personal, or mixed, used in or in connection with or produced in or by the industry with respect to which the employer was assessed or the amount became payable, excepting liens for wages due to workmen by their employer, and such lien for the amount due the Board is valid and in force with respect to each assessment for a period of three years from the end of the calendar year for which the assessment was levied. R.S. 1948, c. 370, s. 48.

Part I , Divisiun (5).-Procedure and Miscellaneous

49. (1) In every case of injury to a workman by accident in any industry within the scope of this Part, it is the duty of the workman, or in case of his death the duty of a dependent, as soon as practicable after the happening of the accident, to give notice thereof to the employer. The notice shall be in writing and contain the name and address of the workman, and state in ordinary language the nature and cause of the injury and the time when and place where the accident occurred, and shall be signed by the injured workman or some person on his behalf, or, in case of death, by any one or more of his dependents or by a person on their behalf.

(2) In the case of an industrial disease, the employer to whom notice of death, disablement, or suspension from employment is to be given shall be the employer who last employed the workman in the employment to the nature of which the disease was due.

(3) The notice may be served upon the employer, or upon any one employer if there are more employers than one, or upon any officer or

5175


met of failure to give notice.

Employer to report accident.

Fallurn toreDort Conrtthlted an offenw.

WerlrmmOr dewndent to a0 claim.

agent of the corporation if the employer is a corporation, or upon any agent of the employer in charge of the business in the place where the injury occurred, by delivering the same to the person upon whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to him at his last-known residence or place of business.

(4) The failure to give any notice required by virtue of this section, unless excused by the Board either on the ground

(a) that notice for some sufficient reason could not have ban given; or

(b) that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or

( c ) that the Board is of opinion that the claim is a just one and ought to be allowed,

is a bar to any claim for compensation under this Part. R.S. 1948, c. 370, s. 49.

50. (1) In case an accident is sustained or is claimed to have been sustained by a workman in his employment, it is the duty of every employer, within three days after its occurrence, to report the accident and the injury resulting therefrom to the Board, and also to any local representative of the Board at the place where the accident occurred. The report shall be in writing, and shall state on the form prescribed by the Board

(a ) the name and address of the workman and the nature of the industry in which he was employed;

(b) the time when and place where the accident occurred; (c ) the cause and nature of the accident and injury; ( d ) the name and address of the physician or qualified practitioner

by whom the workman was or is attended for the injury; and (e) any other particulars required by the regulations;

and may be made by mailing copies thereof addressed to the Board and to the local representative at their usual addresses respectively.

(2) It is the duty of the employer to make such further and other reports respecting the accident and workman as may be required by the Board.

(3) The failure to make any report required by virtue of this section, unless excused by the Board on the ground that the report for some sufficient reason could not have been made, constitutes an offence against this Part. R.S. 1948, c. 370, s. 50; 1954, c. 54, s. 24.

51. (1) Where a workman or dependent is entitled to compensation under this Part, he shall file with the Board an application for the compensation, together with the certificate of the physician or qualified practitioner who attended the workman (if any), and such further or

5176


cllmtob filed within o w Ycu.

Power tow claims filed within thne yean.

Inability to file claim due to war condittoah

DU~Y or phydd.n or quallficd practit lw.

other proofs of his claim as may be required by the regulations or by the Board.

(2) Unless application for the compensation is filed (a ) within one year after the day upon which the injury by accident

(b) in case the applicant is a dependent, then withii one year after or disablement by industrial disease occurred; or

the death, no compensation in respect of any injury is payable under this Part.

(3) Notwithstanding anything contained in this section, the Board, if of the opinion that a claim is a just one and ought to be allowed, may pay

( a ) medical aid on proof of injury being filed within three years from the happening of an accident or one year from the commencement of the first period of temporary partial or temporary total disablement from an industrial disease, without a formal application therefor being filed by the workman; and

(b) the other compensation provided under this Part on receipt of proof of injury and an application filed by the workman within three years from the date of accident or one year from the date of commencement of the first period of temporary partial or temporary total disablement from an industrial disease, or by a dependent within three years after the death.

(4) Notwithstanding anything contained in this Act the Board may, in case the dependent is unable by reason of war conditions to file an application for compensation within the period prescribed by this Act, extend such period for one year from the date upon which such dependent could, in the opinion of the Board, make such application. R.S. 1948, C. 370, S. 51; 1954, C. 54, SS. 25-27.

52. ( 1 ) It is the duty of every physician or qualified practitioner attending or consulted upon any case of injury to a workman by accident or alleged case of injury to a workman by accident in any industry within the scope of this Part

(a) to furnish from time to time such reports in respect of the injury tn such form as may be required by the regulations or by the Board, but the first report containing all information therein requested shaU be furnished to the Board within three days after the date of his first attendance upon the workman and thereafter at intervals of not greater than thirty days during the period the workman is unable to work as a result of his injuries; and

( b ) to furnish a final report withii three days after the workman is, in the opinion of the physician or qualified practitioner, able to resume work and, if treatment is Wig continued after resump- tion of work, to furnish further adequate reports; and

( c ) if the physician be a specialist whose opinion is requested by the attending physician, the workman, or the Board, or if such

’

5177


physician continues to treat the workman after being consulted as a specialist, to furnish his first report to the Board within three days after completion of consultation; but if the specialist is regularly treating the workman, the specialist shall submit reports as required in clauses (a) and (b); and

(d) to give all reasonable and necessary information, advice, and assistance to the injured workman and his dependents in making application for compensation, and in furnishing in connection therewith such certificates and proofs as may be required, without charge to the workman.

(2) Every physician or qualiiied practitioner who is authorized by this Act to treat an injured workman is subject to like duties and responsibilities, and any aid furnished by such person shall be subject to the direction, supervision, and control of the Board.

(3) A physician, qualified practitioner, or other person who is authorized to render medical aid under this Part shall confine his treatment to injuries to such parts of the body as he is authorized to treat under the Statute under which he is permitted to practise, and the giving of any unauthorized treatment is an offence against this Part. (4) A physician, qualified practitioner, or other person who fails to

submit prompt, adequate, and accurate reports and accounts as required by the Act or by the Board is guilty of an offence against this Part.

(5) When a physician, qualified practitioner, or other person commits an offence under subsection (4) or fails to comply with any provision of this Part or with *the directions of the Board, his right to be selected by a workman to render medical aid may be cancelled by the Board. R.S. 1948, c. 370, s. 52; 1954, c. 54, s. 28; 1955, c. 91, s. 14; 1959, c. 95, s. 17.

Workman 53. (1) Every workman who applies for or is in receipt of compen- examination. sation under this Part, if requested by the Board, shall submit himself

to medical examination in accordance with the regulations at a place reasonably convenient for the workman to be fixed by the Board. If the workman fails to submit himself to the examination, or obstructs the same, his right to compensation shall be suspended until the examination has taken place, and no compensation is payable during the period of the suspension.

(2) If an injured workman persists in insanitary or injurious practices which tend to imperil or retard his recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the Board, based upon independent expert medical or surgical advice, is reasonably essential to promote his recovery, the Board may, in its discretion, reduce or suspend the compensation of that workman. R.S. 1948, c. 370, s. 53.

54. The Board may from time to time require such proof of the existence and condition of any dependents in receipt of compensation payments as may be deemed necessary by the Board, and pending the

to Bubmit to

m e a of medical refusal of

treatment.

-f-b depeadeatr

5178


receipt of such proof may withhold further payments. R.S. 1948, c. 370, s. 54.

of Chairman Medical Review

Medical committee.

55. (1) The Lieutenant-Governor in Council may appoint a Chair- man of Medical Review Panels on such terms and conditions as he may prescribe.

(2) The Lieutenant-Governor in Council shall appoint a medical committee which shall prepare a list of specialists in particular classes of injuries or ailments in respect of which workmen have claimed compensation, which list may be amended from time to time.

(3) (a) When a workman applies to the Board for compensation under this Act and alleges

(i) a greater functional disability than that found by the Board;

(ii) a continuance of compensation beyond the period allowed by

(iii) that the medical opinion upon which the disputed findings was

and makes a request in writing to the Board, accompanied by a certificate from a physician certifying that in the opinion of such physician there is a bona fide medical dispute to be resolved, with sufficient particulars to define the question in issue, the workman shall be examined by a Medical Review Panel appointed in the manner provided in this section; or

(b) When the employer or former employer of a workman alleges (i) that the workman has a lesser functional disability than that

(ii) that compensation has been or is being continued beyond the

(iii) that the medical opinion upon which the disputed finding was

and makes a request in writing to the Board, accompanied by a certificate from a physician certifying that in his opinion there is or may be a bona fide medical dispute to be resolved, with sufficient particulars to defme the question in issue, the workman shall be examined by a Medical Review Panel appointed in the manner provided in this section.

(4) Upon receipt of the request, the Board shall within a reasonable period of time, by notice by registered mail, require the workman and his employer each to nominate, from the list hereinbefore mentioned, within eight days after receipt of the notice, one specialist in the particular class of injury or ailment in respect of which the workman has claimed compensation, but no specialist who has treated the workman or who has been consultant in respect of the workman for the workman’s physician may be nominated or accept nomination.

( 5 ) The Board shall, within eighteen days from the receipt of the nominations, if the specialists are prepared to accept the nominations, appoint such specialists members of a Medical Review Panel to examine

Panels.

or

theBoard; or

made is erroneous or incomplete,

found by the Board; or

period that should be allowed; or

made is erroneous or incomplete,

5179

CHAP. 413 WORKMEN’S COMPENSATION 9 E t a 2

the workman. The two specialists so appointed togetber with the Chair- man shall be a Medical Review Panel.

(6) If a specialist does not accept the nomination or if for any reason he is unable to complete his duties as a member of the Panel, anothez specialist shall be nominated and appointed in the manner provided in this section for the appointment of the specialist who has so refused the nomination or who has been unable to complete his duties. (7) If either of the parties to whom notice is given under subsection

(4) fails or neglects to nominate a specialist within eight days after receipt of the notice, the Minister shall appoint a specialist as a member of the Panel, and such member shall be deemed to be appointed on the recommendation of the said party.

(8) Within a reasonable time after the appointment of the specialists, the Chairman shall arrange for the examination of the workman, and a review of the records of the Workmen’s Compensation Board, by himself and the other members of the Panel.

(9) The decision of a majority of the Panel is the decision of the Panel, and within a reasonable time after the examination of the workman the Chairman shall certify to the Board as to

(a ) the condition of the workman; (b) his fitness for employment; (c ) if unfit, the cause of such unfitness; (d) the extent of his temporary or permanent disability by reason

of the injury in respect of which he has claimed compensation; and

(e) such other matters as may, in the opinion of the Panel, or in the 0pini0~ of the Board, be pertinent to the claim;

and the certificate is conclusive as to the matters certified and is binding on the Board. The certificate is not open to question or review in any Court, and no proceedings by or before the Panel shall be restrained by injunction, prohibition, or other process or proceeding in any Court or be removable by certiorari or otherwise into any Court.

(10) The Panel may receive and accept such evidence as in its discretion it may deem fit and proper and essential to the medical problem to be decided.

(1 1 ) The Panel shall determine its own procedure. (12) The Chairman and other members of the Panel have all the

powers conferred upon the Board by section 74. (13) Within eighteen days or such further time as the Board may

deem necessary of the receipt of the certificate from the Chairman of the Medical Review Panel, the Board shall review the claim and notify the workman and the employer in writing of the decision of the Panel regard- ing the matters contained in the certificate.

(14) The costs of examinations under this section are payable out of the Accident Fund as part of the administrative expenses of the Board.

5180

1960 WORKMEN’S COMPEN~ATION CHAP. 413

(15) The Lieutenant-Governor in Council may make regulations as to any matter or thing which appears necessary or advisable for the effectual working of this section. 1954, c. 54, s. 29; 1955, c. 91, s. 15; 1959, c. 95, s. 18.

PrOVhCC liable for

rafalreepinn of Accident Fund.

543. ( 1 ) Subject to subsections (2) and (3 ) , the Minister of Finance shall be custodian of all moneys and securities belonging to the Accident Fund, and the Province is liable for the safe-keeping thereof. All moneys belonging to the Accident Fund collected or received by the Board shall be delivered to the Minister of Finance, or may be deposited to his credit in such banks throughout the Province as he may designate, and all moneys so delivered or deposited shall be credited by the Minister of Finance to the Accident Fund, and shall be accounted for as part of the Consolidated Revenue Fund of the Province. No moneys collected or received on account of the Accident Fund shall be expended or paid out without first passing into the Provincial Treasury and being drawn therefrom as provided in this Part. In like manner all securities belonging to the Accident Fund shall be delivered to the Minister of Finance and held by him until otherwise disposed of for the purpose of this Part.

(2) The Board shall submit each month to the Comptroller-General an estimate of the amount necessary to meet the current disbursements from the Accident Fund during the succeeding calendar month, and, when the estimate is approved by the Comptroller-General, the Minister of Finance is directed to pay the amount thereof to the Board. At the end of each calendar month the Board shall account to the Comptroller- General for all moneys so received, furnishing proper vouchers therefor.

(3) The Board shall cause all moneys in the Accident Fund in excess of current requirements to be invested and reinvested in direct or guaranteed obligations of Canada or any Province of Canada, wit4 preference to be given obligations guaranteed by the Province of British Columbia and incurred in connection with the construction of schools, sewers, and domestic water systems, and municipal works under the Public Schools Act, the Public Schools Construction Act, 1953, the Improvement Dk- tticts ABistance Loan Act, and the Mmh5pdities Assistance Act. The Board shall from time to time submit to the Comptroller-General an estimate of the amount required by it for investment, which estimate shdl be accompanied by a full description of the kind and character of the investments proposed to be made, and, when the estimate and investments are approved by the Comptrollm-General and by the Minister of Finance, the Minister of Finance is directed to pay out the amount thereof for the purpose of such investments. At the end of each calendar month the Board shall account to the Comptroller-General for all moneys so invested, furnishing proper vouchers therefor.

(4) All investments shall be made in the names of the Board an<

Cumnt &bume- ments.

of m a ~ e n t mmhu.

~ ~ ~ ~ + t m e n t a in intnames

of Flnmcu- $,,;g;”d E the Minister of Finance jointly, and all interest on investments shall bt

payable to the Board and form part of the Accident Fund. 5181


Audit of accounts.

Annual revon.

ReDon 10 be laid before Leaislnture.

Board to publish and distribute information.

Accident mevention.

(5) Interest on all moneys belonging to the Accident Fund in the custody of the Minister of Finance in excess of current requirements and not invested shall, subject to the certificate of the Comptroller-General, be paid by the Minister of Finance to the Board at a rate not less than that allowed by the bank in which such moneys are deposited, and such interest shall form part of the Accident Fund. R.S. 1948, c. 370, s. 55; 1960, c. 63, s. 2.

57. The accounts of the Board shall be audited by the Comptroller- General or by an auditor appointed by the Lieutenant-Governor in Council for that purpose, and the salary or remuneration of the last- mentioned auditor shall be paid by the Board. For the purpose of any audit under this section, the Lieutenant-Governor in Council may appoint a competent person to make an actuarial valuation of the assets and liabilities of the Accident Fund, and to report thereon; and the salary or remuneration of that person shall be paid by the Board. R.S. 1948, c. 370, s. 56.

58. (1) The Board shall, on or before the first day of March in each year, make a report to the Lieutenant-Governor in Council of its trans- actions during the last preceding calendar year, and the report shall contain such particulars as the Lieutenant-Governor in Council may

(2) Every report shall be forthwith laid by the Minister of Labour before the Legislature if the Legislature is then in session, or, if it is not then in session, within fifteen days after the opening of the next session.

(3) It is the duty of the Board from time to time to publish and distribute among employers and workmen such general information in respect of the business transacted by the Board as in its judgment may be useful. R.S. 1948, c. 370, s. 57; 1954, c. 54, s. 30.

prescribe.

59. (1) The Board has power (a) to investigate from time to time employments and places of

employment withim the Province, and determine what suitable safety devices or other reasonable means or requirements for the prevention of accidents shall be adopted or followed in any or all employments or places of employment;

(b) to determine what suitable devices or other reasonable means or requirements for the prevention of industrial diseases shall be adopted or followed in any or all employments or places of employment;

(c ) to make rules and regulations, whether of general or special application, and which may apply to both employers and workmen, for the prevention of accidents and the prevention of industrial diseases in employments or places of employment;

( d ) to establish and maintain museums in which shall be exhibited safety devices, safeguards, and other means and methods for

5182


the protection of the life, health, and safety of workmen, and to publish and distribute bulletins on any phase of the subject of accident prevention;

(e) to cause lectures to be delivered, illustrated by stereopticon or other views, diagrams, or pictures, for the information of employers and their workmen and the general public in regard to first aid and in regard to the causes and prevention of industrial accidents, industrial diseases, and related subjects;

( f ) to appoint advisory committees, on which employers and workmen shall be represented, to assist the Board in establish- ing reasonable standards of safety in employments, and to recommend rules and regulations;

( g ) to charge any class, sub-class, or employer with the cost of any expenditure made under this Act for the benefit of that class, sub-class, or employer, including the cost of investigations, inspections, and other services rendered for the prevention of accidents.

(2) Before the adoption of any rule or regulation by the Board under this section a public hearing shall be held for the purpose of considering the same. Not less than ten days before the hearing a notice thereof shall be published in at least three newspapers, of which one shall be published in the City of Victoria and one in the City of Vancouver. No defect or inaccuracy in the notice or in the publication thereof shall invalidate any rule or regulation made by the Board.

( 3 ) The Board and any member of it, and any officer or person authorized by it for that purpose, has the right at all reasonable hours to enter into the establishment of any employer who is liable to contribute to the Accident Fund and the premises connected with it, and every part of them, for the purpose of ascertaining whether the ways, works, machinery, or appliances therein are safe, adequate, and sufficient, and whether all proper precautions are taken for the prevention of accidents and industrial diseases to the workmen employed in or about the establishment or premises, and whether the safety appliances or safeguards prescribed by law are used and employed therein, or for any other purpose which the Board may deem necessary, including the purpose of determining the proportion in which the employer should contribute to the Accident Fund. Immediately after each visit the person authorized under this subsection shall cause to be posted in a conspicuous place, at or near the works, establishment, or premises, a statement showing what portion of the works, establishment, or premises has been inspected, and the condition found to prevail therein; and he shall furnish a copy of the statement to the manager of the mine, works, establishment, or premises. This subsection does not apply to a mine, or to a quarry, or to a metallurgical works as defined by the Metalliferozu Mines Regulation Act, or to a mine as defined by the Coal Mines Regu- lation Act.

1'"bEcbear-

safety *~les - inns on

Power to

mnlses. iasuect

5183


Obaructloa an offence.

Powor of Board to order installation ofsofctv devices.

Power of Board to order industry closed down.

PcpI.1w for non- compU.Iy# with order.

Leave required for operation of plant which h M bcen closed down.

(4) Every person who obstructs or interferes with any Commissioner, officer, or person in the exercise of the rights conferred by subsection (3) is guilty of an offence against this Part.

( 5 ) Notwithstanding anything contained in this or any other Act, the Board may enter into an arrangement with any Minister of the Crown, in right of Canada or the Province, whereby inspectors in the employ of Canada or the Province or any agency thereof may, when deemed necessary in the interests of safety and accident prevention, be authorized and required to carry out the duties and responsibilities of an inspector under this Act, and every inspector in the course of such duties and responsibilities shall be under the direction and control of the Board. R.S. 1948, c. 370, s. 58; 1954, c. 54, s. 31; 1959, c. 95, s. 19.

60. (1 ) Where in any employment or place of employment safety devices or appliances are in the opinion of the Board necessary for the prevention of accidents or the prevention or detection of industrial diseases, the Board may order the installation or adoption of such devices and appliances, and may fix a reasonable time within which they shall be installed or adopted, and the Board shall give notice thereof to the employer. The employer shall notify the Board in writing as soon as any such order has been complied with.

(2) Where safety devices or appliances are by order of the Board under this section required to be installed or adopted, or are prescribed by the regulations, and the employer fails, neglects, or refuses to install and adopt such safety devices or appliances in any employment or place of employment in accordance with the terms of the order or regulations and to the satisfaction of the Board, or where under the circumstances the Board is of opinion that conditions of immediate danger exist in any employment or place of employment which would otherwise be likely to result in the loss of life or serious injury to the workmen employed therein, the Board may, in its discretion, order the employer to forthwith close down the whole or any part of the employment or place of employment and the industry carried on therein, and the Board shall notify the employer of the order.

(3) Every employer who fails, neglects, or refuses to comply with any order made by the Board under subsection (2) is guilty of an offence against this Part, and each day’s continuance of any such failure, neglect, or refusal to comply constitutes a new and distinct offence. R.S. 1948, c. 370, s. 59; 1959, c. 95, s. 20.

81. (1) No employer shall, for the purpose of any industry within the scope of this Part, commence the operation of or operate or carry on any plant, or establishment, or any substantial addition thereto, which has not been in operation for the period of seven months last preceding, and in which power-driven machinery is used, until leave therefor is obtained from the Board as provided in this section.

5184

1960

Insuccch.

Penalty.

Renulatlons.

Penalties for breach of reaularions.

Power of Lieut.- Governor in Council to amend Act.

Retroactive diect.


(2) Application for leave under this section shalI be made to the Board in writing, signed by the employer, and stating that the plant, or establishment, or any substantial addition thereto, is ready for operation. Upon receipt of the application, the Board or some member of the Board, or some other person appointed by the Board, shall make an inspection of the plant, or establishment, or any substantial addition thereto, and if on such inspection the plant, or establishment, or any substantial addition thereto, is found to be reasonably free from danger to persons employed therein, the Board shall grant leave for the operation of the plant, or establishment, or any substantial addition thereto. Pending inspection, the Board may, by a temporary permit, grant leave to the employer for the operation of the plant, or establishment, or any substantial addition thereto.

(3) Every person who operates or carries on any plant, or establishment, or any substantial addition thereto, in contravention of the prcr visions of this section is liable to a penalty of not less than fifty dollars and not more than two hundred dollars for each day on which the plant, or establishment, or any substantial addition thereto, is so operated or carried on. R.S. 1948, c. 370, s. 60; 1959, c. 95, s. 20.

62. (1 ) In addition to the rules and regulations which may be made under the provisions of this Part, the Board may issue such orders and directives as it may deem requisite for the due administration and carrying out of the provisions of this Part and may likewise prescribe the form and use of such payrolls, records, reports, certificates, declarations, and documents as may be requisite, and if deemed necessary may mrike regulations for the same purposes.

(2) The Board may by regulation provide penalties to which every person who contravenes any rule or regulation made under this Part shall be liable, provided that in no case shall the penalty exceed five hundred dollars, and no prosecution for any such contravention shall be instituted without leave of the Board. R.S. 1948, c. 370, s. 61; 1954, c. 54, s. 32; 1959, c. 95, s. 21.

=A. (1) After receipt of any report by the Commissioner appointed under the Public Znquiries Act by Order of the Lieutenant-Governor in Council numbered 168 and approved on the twenty-third day of January, 1964, the Lieutenant-Governor in Council may, by Order, amend any provision of Division (3) of Part I of this Act and make whatever other amendments to this Act as are necessary to give full force and effect thereto, and thereupon this Act is amended accordingly.

(2) Any amendment made under subsection (1) may be expressed tobe deemed to have come into force and effect on any day after the thirty-fust day of December, 1964, and in that case the amendment is retroactive to the extent necessary to give full force and effect to the amendment on and after that day.

5185


Limit powers. of (3) The powers conferred upon the Lieutenant-Governor in Council by t h i s section, if not exercised on or before the commencement of the next meeting of the Legislative Asembly after that at which this section is enacted, shall not thereafter be exercised. 1965, c. 50, s. 18.

63. Every rule or regulation made by the Board under this Part shall rnbficatiooof regulations.

Penalties generally.

Recovery of Denaltics.

%orkmeo*r Comrrensa- tion Board."

Term of omce.

Retirement at 70 years.

ch.irnun.

A h c e of chairman.

PreSUmPtiOn.

Amointment pro tempore.

upon its adoption be published in the Gazette, and shall take effect on the expiration of thirty days after the first publication in the Gazette, or at such other time not more than three months earlier as the Board may fix. R.S. 1948, c. 370, s. 62.

64. Every person who is guilty of an offence against this Part is liable to a penalty not exceeding five hundred dollars. R.S. 1948, c. 370, s. 63.

65. The penalties imposed by or under the authority of this Part are recoverable under the Summary Convictions Act or by an action brought by the Board in any Court of competent jurisdiction, and such penalties when collected shall be paid over to the Board and shall form part of the Accident Fund. R.5. 1948, c. 370, s. 64.

Part I , Division (6).-Workmen's Compensation Board

66. The Commission constituted for the administration of this Part, called the " Workmen's Compensation Board," shall exist and continue as a body corporate, and shall consist of three members to be appointed by the Lieutenant-Governor in Council. R.S. 1948, c. 370, s. 65.

67. (1) Subject to subsection (2) of this section and to section 71, each member of the Board shall hold office during the pleasure of the Lieutenant-Governor in Council.

(2) Unless otherwise directed by the Lieutenant-Governor in Coun- cil, a member shall cease to hold office when he attains the age of seventy years. R.S. 1948, c. 370, s. 66; 1954, c. 54, s. 33.

68. (1) One of the Commissioners shall be appointed by the Lieu- tenant-Governor in Council to be the Chairman of the Board, and he shall hold that office while he remains a member of the Board.

(2) In the absence of the Chairman or in case of his inability to act, or if there is a vacancy in the office, any other Commissioner may act as Chairman.

(3) Where a Commissioner appears to have acted for or instead of the Chairman, it shall be conclusively presumed that he so acted for one of the reasons mentioned in subsection (2). R.S. 1948, c. 370, s. 67.

69. (1 ) In the case of the illness or absence from the Province of a Commissioner or of his inability to act from any cause, the Lieutenant- Governor in Council may appoint some person to act pro tempore in his stead, and the person so appointed has all the powers and shall perform all the duties of a Commissioner.

5186


Application of subsec.(l).

commissioners to eive whole time to duties. Salaries.

Disquali- fication.

Diauosal of interest.

(2) Subsection (1) applies in the case of the Chairman of the Board as well as in the case of any other member of it. R.S. 1948, c. 370, s. 68.

70. (1 ) Each Commissioner shall devote the whole of his time to the performance of his duties under this Part.

(2) The salaries of the Commissioners are payable out of the Acci- dent Fund, and shall be k e d by the Lieutenant-Governor in Council. R.S. 1948, c. 370, s. 69; 1952, c. 15, s. 14; 1954, c. 54, s. 34.

71. (1) A Commissioner shall not, directly or indirectly, ( a ) have, purchase, take, or become interested in any industry to

which this Part applies, or any bond, debenture, or other security of the person owning or carrying it on;

(b) have any interest in any device, machine, appliance, patented appliance, patented process, or article which may be required or used for the prevention of accidents.

(2) If any such industry, or interest therein, or any such share, bond, debenture, security, or thing comes to or becomes vested in a Corninis-

51861


Prindud office of Board.

QUOnUn.

Vacancies.

P r o c c e ~ s of Board.

Appointment of officers.

SuparUIDua- tion Fund for CmUlOYeeS of Board.

sioner by will or by operation of law, and he does not within three months thereafter sell and absolutely dispose of it, he ceases to hold office. R.S. 1948, c. 370, s. 70.

72. ( 1 ) The Board shall maintain its principal oflice at such place in the Province as in the opinion of the Board, based on considerations of economy in administration and the prompt discharge of its duties, is best adapted for the purpose; and the sittings of the Board shall be held at the principal office, except when it is deemed expedient to hold sittings elsewhere, and in that case sittings may be held in any part of the Prov- ince. For the purpose of its administration, the Board may, subject to the approval of the Lieutenant-Governor in Council, acquire, either by purchase, construction, or otherwise, real property, and thereon con- struct buildings and improve and repair them as it may deem necessary, and may, with the like approval, sell or otherwise dispose of any such property; and the provisions of this subsection shall apply to any real property of the Board, notwithstanding the date such real property was acquired.

(2) The presence of two Commissioners is necessary to constitute a quorum of the Board.

(3) A vacancy in the membership of the Board shall not, if there remain two members of it, impair the authority of the two remaining members to act.

(4) The Board shall sit at such times and conduct its proceedings in such manner as it may deem most convenient for the proper discharge and speedy dispatch of business. R.S. 1948, e. 370, s. 71; 1952, c. 15, s. 15; 1954, c. 54, s. 35.

73. ( 1 ) The Board shall appoint a Secretary and a Chief Medical Officer, and may appoint such auditors, actuaries, accountants, inspectors, physicians, qualified practitioners, officers, clerks, and servants as the Board may deem necessary for carrying out the provisions of this Part, and may prescribe their duties and, subject to the approval of the Lieutenant-Governor in Council, may fix their salaries.

(2) Every person so appointed shall hold office during the pleasure of the Board, and his salary shall be paid out of the Accident Fund.

(3) The Board, subject to the approval of the Lieutenant-Governor in Council, may establish and maintain a fund, to be known as the “ Superannuation Fund,” for the payment of superannuation allowances to its employees or of allowances upon the disability or death of its employees, by contributions from the employees of the Board and from the Accident Fund; and, subject to the like approval, may determine the amounts of superannuation or other allowances and the conditions upon which they may be paid and the persons to whom they may be paid; and the Board, subject to the like approval, may use the Superannuation Fund to purchase superannuation allowances for its employees from the

5187


Memben of Board to be deemed employees.

Powers of Board.

Depositions of witnema.

Board may act won report of officers.

Officen to have P O W ~ of Board.

Bxamiaation of cmvloyer’s books.

5188

Crown in right of Canada, or from the Crown in right of the Province!, or from an insurance company or companies. The costs of administering the Superannuation Fund shall be part of the cost of the administration of the Act.

(4) The Board, with the approval of the Lieutenant-Governor in Council, may enter into an agreement with the Commissioner under the Civil Service Superannuation Act whereby the said Act may be applied to the employees of the Board.

( 5 ) For the purposes of subsections (3) and (4), “employees” includes the members of the Board. R.S. 1948, c. 370, s. 72; 1954, c. 54, s. 36.

74. (1) The Board has the like powers as the Supreme Court for compelling the attendance of witnesses and of examining them under oath, and compelling the production and inspection of books, papers, documents, and things.

(2) The Board may cause depositions of witnesses residing within or without the Province to be taken before any person appointed by the Board in a similar manner to that prescribed by the Rules of the Supreme Court for the taking of like depositions in that Court before a Commis- sioner. R.S. 1948, c. 370, s. 73.

75. (1) The Board may act upon the report of any of its officers, and any inquiry which it is deemed necessary to make may be made by any one of the Commissioners or by an officer of the Board or some other person appointed to make the inquiry, and the Board may act upon his report as to the result of the inquiry.

(2) The Commissioner, officer, and every other person appointed to make an inquiry has for the purposes of any inquiry under subsection (1 ) all the powers conferred upon the Board by section 74.

(3) The Board and any member of it, and any officer of the Board or person authorized by it for that purpose, has the right to examine the books and accounts of every employer and to make such other inquiry as the Board may deem necessary for the purpose of ascertaining whether any statement furnished to the Board under the provisions of section 33 is an accurate statement of the matters which are required to be stated therein, or of ascertaining the amount of the payroll of any employer, or of ascertaining whether any industry or person is within the scope of this Part. For the purpose of any such examination or inquiry, the Board or person authorized to make the examination or inquiry may give to the employer or his agent notice in writing requir- ing him to bring or produce before such Board or person, at a place and time to be mentioned in the notice, which time shall be at least ten days after the giving of the notice, all documents, writiugs, books, deeds, and papers in the possession, custody, or power of the employer touching or in anywise relating to or concerning the subject-matter of the examination or inquiry referred to in the notice, and every employer and every


ofscer may rations. Cake dcda-

ObstNCtioII an offence,

Information not to be divulsed.

Disclosure an offence.

Access to fi ls .

Jurisdiction of Board.

agent of the employer named in and served with any such notice shall produce at the time and place required all such documents, writings, books, deeds, and papers according to the tenor of the notice.

(4) Every member of the Board and every officer or person authorized by it to make examination or inquiry under this section has power and authority to require and to take affidavits, afimations, or declarations as to any matter of such examination or inquiry, and to take statutory declarations required under section 33, and in all such cases to administer oaths, affirmations, and declarations and certify to the same having been made.

( 5 ) An employer and every other person who obstructs or hinders the making of any examination or inquiry mentioned in subsection (3 ) , or who refuses to permit it to be made, or who neglects or refuses to produce such documents, writings, books, deeds, and papers at the place and time stated in the notice mentioned in subsection (3) , is guilty of an offence against this Part. R.S. 1948, c. 370, s. 74.

76. (1) No officer of the Board and no person authorized to make an examination or inquiry under this Part shall divulge or allow to be divulged, except in the performance of his duties or under the authority of the Board, any information obtained by him or which has come to his knowledge in making or in connection with an examination or inquiry under this Part.

(2) Every person who violates the provisions of subsection (1) is guilty of an offence against this Part.

(3) Notwithstanding subsections (1) and (2), the Compensation Counsellor shall have access at any reasonable time to the complete files and records of the Board and other material pertaining to each and every injured workman. R.S. 1948, c. 370, s. 75; 1954, c. 54, s. 37.

77. (1) The Board has exclusive jurisdiction to inquire into, hear, and determine all matters and questions of fact and law arising under this Part, and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any Court, and no proceedings by or before the Board shall be restrained by injunction, prohibition, or other process or proceeding in any Court or be removable by certiorari or otherwise into any Court, nor shall any action be maintained or brought against any member of the Board in respect of any act, omission, or decision done or made in the bona fide belief that the same was within the jurisdiction of the Board; and without restricting the generality of the foregoing the Board has exclusive jurisdiction to inquire into, hear, and determine

(a) the question whether an injury has arisen out of or in the

(b) the existence and degree of disability by reason of any injury; (c) the permanence of disability by reason of any injury;

course of an employment within the scope of this Part;

5189

CHAP. 413 WORKMEN’S COMPENSATION 9 EL= 2

(d) the degree of diminution of earning capacity by reason of any

(e) the amount of average earnings of a workman, whether paid in cash or board or lodging or other form of remuneration, for the purpose of levying assessments, and the average earnings of a workman for purposes of payment of compensation;

(f) the existence, for the purpose of this Part, of the relationship of any member of the family of a workman as defined by this Act;

injury;

(g) the existence of dependency; (h) whether or not any industry or any part, branch, or department

of any industry is within the scope of this Part, and the class to which any industry or any part, branch, or department of any industry within the scope of this Part should be assigned;

(i) whether or not any workman in any industry within the scope of this Part is within the scope of this Part and entitled to compensation thereunder;

( j ) whether or not any person is a workman, a sub-contractor, a contractor, or an employer within the meaning of this Part.

(2) Notwithstanding subsection ( 1 ), the Board has full discretionary power at any time to reopen, rehear, and redetermine any matter which has been dealt with by it. R.S. 1948, c. 370, s. 76; 1954, c. 54, s. 38; 1955, c. 91, s. 16.

Power to -- review

Powu to 78. (1) In case the Board is of opinion that any person entitled to withhold or nr~endwm- compensation under this Part is leading an immoral or improper life, or Densation in cerraincaaea. in case any such person is confined to jail or prison, the Board has

power, after due investigation, to withhold, cancel, or suspend compensation for such period as the Board deems advisable. Where compensation is so withheld or suspended, it shall be paid to the other dependents (if any) or to such of the other dependents as the Board deems advisable.

(2) In case the Board is of opinion that any workman entitled to compensation under this Part is likely to use the money in gambling or otherwise than for the benefit of himself, his wife, or his children, or persons dependent upon him, or is confined to gaol or prison, the Board in its discretion may withhold or suspend the payment of compensation for such period as the Board deems advisable. Where compensation is so withheld the Board may in its discretion pay the compensation so withheld or any portion thereof to the wife or children, or to any of the persons who were at the time of the accident dependent upon the injured workman, or the compensation may be paid to a trustee appointed by the Board to be expended for the benefit of the workman, his wife or children, or persons dependent upon him. R.S. 1948, c. 370, s. 77; 1954, c. 54, s. 39.

hlarcor samblinn or orom uae.

5190

1960

Legal me- dent not binding on Board.

costs.

Notices and semi c e.

WORKMEN'S COMPENSATION CHAP. 413

79. The decision of the Board shall be upon the real merits and justice of the case, and it is not bound to follow strict legal precedent. R.S. 1948, c. 370, s. 78.

80. The Board may award such sum as it may deem reasonable to the successful party to a contested claim for compensation or to any other contested matter to meet the expenses he has been put to by reason of or incidental to the contest, and an order of the Board for the payment by an employer or by a workman of any sum so awarded, when filed in the manner provided for the iZng of certificates by subsection (2) of section 39, becomes a judgment of the Court in which it is filed and may be enforced accordingly. R.S. 1948, c. 370, s. 79.

81. Every notice which the Board is empowered or required to give to any employer or workman under the provisions of this Part, or under any rules or regulations made hereunder, shall be in Writing, and may be served either personally or by mailing it to the address of the person to whom it is given. Where a notice is mailed, service of the notice shall be deemed to be effected at the time at which the letter containing the notice, and properly addressed, postage prepaid, and mailed, would be delivered in the ordinary course of post. R.S. 1948, c. 370, s. 80.

PART I1

LIABILITY OF EMPLOYERS IN INDUSTRIES NOT WITHIN THE SCOPE OF PART 1

~ ~ ~ ~ o ~ f o f 88. Sections 83 to 85 apply only to the industries to which Part I does not apply and to the workmen employed in such industries. R.S. 1948, c. 370, s. 81; 1963, c. 42, s. 24.

~ m ~ m ~ m 83. ( 1 ) Where personal injury is caused to a workman by reason of defeafvO any defect in the condition or arrangement of the ways, works, machin- plant or Ed%? ery, plant, buildings, or premises connected with, intended for, or used stzxf in the business of his employer, or by reason of the negligence of hi9

employer or of any person in the service of his employer acting within the scope of his employment, the workman, or, if the injury results in death, the legal personal representatives of the workman, and any person entitled in case of death shall have an action against the employer; and if the action is brought by the workman, he is entitled to recover from the employer the damages sustained by the workman by or in con- sequence of the injury, and if the action is brought by the legal personal representatives of the workman or by or on behalf of persons entitled to damages under the Families' Compensation Act, they are entitled to recover such damages as they are entitled to under that Act.

5191

CHAP. 413 WO~RMEN'S COMPENSATION 9 ELIZ 2

Lhbititv of ucrmn SUUPlY in0 defective plant or premises.

LlawitJ of contractor and rub contractor.

m6ct of continuance in emuloyment after knowledge.

(2) Where the execution of any work is being carried into effect under any contract, and the person for whom the work is done owns or supplies any ways, works, machinery, plant, buildings, or premises, and by reason of any defect in the condition or arrangement of them persod injury is caused to a workman employed by the contractor or by any subcontractor, and the defect arose from the negligence of the person for whom the work or any part of it is done, or of some person in his service and acting withiin the scope of his employment, the person for whom the work or that part of the work is done is liable to the action as if the workman had been employed by him, and for that purpose shall be deemed to be the employer of the workman within the meaning of this Part; but any such contractor or sub-contractor is liable to the action as if this subsection had not been enacted, but not so that double damages shall be recoverable for the same injury.

(3) Nothing in subsection (2) affects any right or liability of the person for whom the work is done and the contractor or subcontractor as between themselves.

(4) A workman shall not by reason only of his continuing in the employment of the employer with knowledge of the defect or negligence which caused his injury be deemed to have voluntarily incurred the risk of injury. R.S. 1948, c. 370, s. 82.

certain common-law NICS ab;* Rated.

84. A workman shall be deemed not to have undertaken the risks due to the negligence of his fellow-workmen, and contributory negligence on the part of a workman shall not be a bar to recovery by him or by any person entitled to damages under the Families' Compensation Act in an action for the recovery of damages for an injury sustained by or causing the death of the workman while in the service of his employer for which the employer would otherwise have been liable. R.S. 1948, c. 370, s. 83.

~ t r i b u t m ~ 85. Contributory negligence on the part of the workman shall never- E=* theless be taken into account in assessing the damages in any such action. d-=

llCRliRCDCe

R.S. 1948, c. 370, s. 84.

5192

1960

Description of Disease

Anthrax Lead poisoning or its sequelae

Mercury poisoning or its

Phosphorus poisoning or its

Arsenic poisoning or its

Ankylostomiasis Sulphur poisoning Silicosis ...__.._. ~

Infected blisters

Silicosis Injury to the lungs Injury to the heart Occupational deafness .__.__.._...

sequelae

sequelae

sequelae

WORKMEN’S COMPENSATION

Description of Process or Industry

Handling of wool, hair, bristles, hides, and skins. Any process involving the use of lead or its prep-

Any process involving the use of mercury or its

Any process involving the use of phosphorus or its

Any process involving the use of arsenic or its prep-

Mining. Coal-mining. Metalliferous-mining industry. Any process involving continuous friction, rubbing,

Coal-mining industry. Fire-fighting. Fire-fighting. Any industry involving prolonged and continued

arations or compounds.

preparations or compounds.

preparations or compounds.

arations or compounds.

. .

or vibration causing blisters or abrasions. . .

exposure to excessive noise.

SCHEDULE (Section 8 (2))

CHAP. 413

R.S. 1948, c. 370, Sch.; 1954, c. 54, s. 40.

Printed by A. SWN, Printer to the Queen’s Most Excellent Majesty in right of the Province of British Columbia.

1966

5 193

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