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This program has been accredited by the Law Society of Upper Canada towards the professional development requirement for certification.

Labour Law            5 hours

Introductory remarks by Co-Chairs
8:30 a.m. to 8:45 a.m.

According to Ontario's Workplace Safety and Insurance Act, a worker who suffers "personal injury by accident" is entitled to the services and benefits provided by workers' compensation. When does workplace violence constitute an "accident" for the purposes of this legislation? How does the pursuit of compensation for workplace violence under the Act impact on redress available under grievance arbitration or other schemes, for example, Bill 168? Our panel of experts will address these issues and answer the following questions:

• Compensability: When will injuries sustained as a result of workplace violence be compensable? Are the emotional consequences of workplace violence and harassment compensable? How are "right to sue" disputes dealt with by the Tribunal in relation to workplace violence issues?
• Mental Stress: When will a worker be entitled to benefits for traumatic mental stress? Is the threat of physical violence necessary for a finding of traumatic mental stress? Is physical contact necessary? Will mental stress that is the result of workplace harassment be compensable? Will workers who develop mental stress gradually over time be entitled to benefits? What evidence does the WSIB require for a claim of mental stress? Is a psychiatrist or psychologist's note required? If the acute reaction is delayed, what evidence will be required for the injury to be compensable?
• Violence and Harassment under Other Regimes: Will the implementation of Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, affect workers' compensation claims? What is the definition of violence and harassment under human rights legislation? What strategic considerations should be considered when deciding whether and when to commence a claim for compensation under workers' compensation rather than under another regime?
• Prevention: How should employers conduct risk assessments in relation to violence in the workplace? What types of workplace interactions typically lead to violence and harassment? How can such patterns be identified and addressed? How should workplace policies be established to prevent violence and harassment?

BREAK
10:00 a.m. to 10:30 a.m.

Many injured workers will be able to return to their positions in a matter of days, or be accommodated in modified positions. However, some cases will require return-to-work interventions or referrals to the Labour Market Re-entry Program for skills upgrading or retraining. Understanding the role and scope of return-to-work interventions and labour market re-entry programs is the key to maximizing their effectiveness. Lancaster's panel of experts will address the following questions regarding return-to-work and labour market re-entry:

• Ergonomics: How have the recent changes limiting the WSIB ergonomics program affected the return-to-work experience? What are the costs and benefits of acquiring ergonomic advice in the return-to-work process? How can the costs of such services be defrayed? Will the WSIB be making determinations about job suitability based on third-party ergonomist reports, that are sourced and paid for by the employer? Will these determinations stand up at appeals and at the Tribunal? Can ergonomists expect to be called to testify and, if so, should employers carefully assess the credentials, experience, etc. of the third party ergonomists they bring in?
• Seeking Interventions: What are the responsibilities of workers, unions and employers in identifying and resolving barriers in return-to-work? What programs and approaches have been associated with greater efficacy in achieving a successful return-to-work?
• Medical Information: What are the strategies for timely collection of functional abilities information? When is referral to an independent medical examiner permissible or appropriate? Must employers follow the recommendations of independent medical advisors? Must employers give equal weight to medical evidence from different sources? When can employers request further medical information as a precondition to return to work?
• Older Workers: What types of interventions are most effective when it comes to older workers? How much weight is given to age when considering labour market re-entry programs or costly return-to-work interventions?
• Cooperation of Workers: When is a worker's lack of cooperation in a return-to-work program grounds for dismissal? What role can the union have in facilitating cooperation? What are the benefit implications if there is a lack of cooperation?
• Co-Workers: What role do co-workers play in a successful return-to-work? How can employers and unions encourage behaviours that increase the probability of a successful return-to-work? What are the employers' responsibilities when it comes to managing co-workers' attitudes?
• Labour Market Re-Entry: When is referral to labour market re-entry appropriate? How is a suitable labour market re-entry program identified? Can workers' or employers' representatives influence the choice of program? How do the WSIB and the WSIAT define a successful completion of a labour market re-entry program? What effect will the changing demographic composition of the workforce have on rates of referral to and types of labour market re-entry programs?

Lancaster's panel of experts will discuss recent case law as well as tactical issues relating to the interaction of human rights and workers' compensation legislation. Topics to be discussed include:

• Return-to-Work and Accommodation Issues: How do the obligations to re-employ under human rights and workplace safety and insurance legislation interact? Once the employer satisfies its obligation to re-employ under the Workplace Safety and Insurance Act, does it have any further obligations under human rights legislation?
• Privacy Issues: Given an employee's right to privacy, what medical information must employees provide to their employer, union and to the workers' compensation board to facilitate a return to work? Can the board disclose the personal information in an employee's claim file to the employer or a third party? How do workers' compensation boards, privacy commissioners, arbitrators and human rights tribunals balance the employer's interests against the employee's right to privacy?
• Charter Challenges: Are age restrictions on loss of earnings benefits contrary to human rights legislation and the Charter? Does the use of the combined values chart, which reduces compensation for non-economic loss for employees with multiple disabilities, violate the equality provisions of the Charter? Do statutory restrictions on compensation for mental stress (such as a requirement of an "acute reaction" to a "sudden and unexpected traumatic event") violate the Charter's prohibition against discrimination? If so, is the situation corrected by a policy that awards compensation for the cumulative effects of such events over a protracted time period? What other provisions of workers' compensation legislation raise Charter issues?
• Jurisdiction and Forum: What is the proper forum for a challenge to an allegedly discriminatory WSIB policy? Should a worker pursue a remedy under human rights legislation as well as compensation under the Act? When do the WSIB and WSIAT have jurisdiction to interpret and apply the Human Rights Code and the Charter? Do adjudicators have the requisite training and experience to do so? When will the Human Rights Tribunal defer the adjudication of human rights claims pending the outcome of a decision at the WSIB or WSIAT? Can the Tribunal review decisions of the WSIB or WSIAT for compliance with human rights legislation?