PART II-CANADA.'

INTRODUCTION.

With the single exception of Prince Edward Island, all of the Provinces of Canada, including the Dominion Government, have enacted workmen's compensation legislation. The law of Saskatchewan, however, although designated in its title as a workmen's compensation law, is merely an employer's liability act, and is therefore not included in the following discussion. The Dominion act provides that if a Federal employee (Government railroads excepted) sustains an injury he shall receive the same compensation as any other person would, under similar circumstances, receive under the law of the Province in which the accident occurred. Administration of the Dominion act is placed in the hands of the provincial boards, and any compensation awarded may be paid by the Dominion Minister of Finance.

Chronologically, Canadian legislation practically parallels that of the United States. The first law was enacted by British Columbia in 1902, followed by Alberta in 1908, Quebec in 1909, and Manitoba and Nova Scotia in 1910. These early laws were patterned after the British act and were really modified employers' liability laws. No administrative commissions were provided, and usually suits for damages were permitted. A radical departure from the British type of law, however, took place in 1914, when Ontario enacted the first of the collective-liability compensation acts prevailing in most of the Provinces at the present time. These laws were patterned upon the mutual liability idea of the German workmen's compensation system and upon the exclusive State fund plan of the Washington act. Nova Scotia enacted a similar law in 1915, followed by British Columbia in 1916 and by Alberta and New Brunswick in 1918.

CANADIAN AND AMERICAN LAWS COMPARED.

An analysis of the Canadian laws shows a number of striking characteristics and of deviations from the American type of compensation act. Some of the more important of these are the following:

1. In Canada there is a remarkable uniformity among the several compensation laws. This uniformity applies to the scope of the

1 This comparison includes 1919 legislation.

'In the United States the Federal compensation act was passed in 1908, while Montana enacted a compensation law in 1909 and New York in 1910, though these early State laws were later declared unconstitutional.

131

acts, benefits, injuries covered, administration, and procedure. In the United States compensation acts are distinguished more for their dissimilarity than for their uniformity.

2. In Canada all of the laws are compulsory as to the employers coming within the scope of the act. In the United States only 14 are compulsory while 31 are elective.

3. In Canada the scope of the law in each Province (Yukon excepted) is limited to enumerated hazardous employments. There is some diversity in the number of such employments, but the principal hazardous industries are covered, including manufacturing, mining, construction, and transportation. In the United States only 13 States limit their scope to the so-called hazardous industries, while 32 States cover the "nonhazardous" as well as the "hazardous" industries.

4. In Canada occupational diseases are compensable in every Province except Quebec and Yukon. Such diseases, however, are limited to those enumerated in the statutory schedule. In the United States only 6 of the 45 State laws include occupational diseases, but in these 6 States all occupational diseases are covered. 5. In Canada all of the Provinces except Manitoba, Quebec, and Yukon have exclusive State insurance funds. In Ontario, however, employers under schedule 2 (municipalities, railroad, express, telephone, telegraph, and navigation) are permitted self-insurance. In the United States only 8 of the 45 States have exclusive State funds, while 9 have competitive State funds.

6. In Canada probably the most significant characteristic of compensation legislation is the assumption of liability on the part of the Province. Injured workmen are paid direct by the workmen's compensation board out of the accident fund. This is true, irrespective of whether or not the employer has contributed his premiums to the fund and even if the employer is insured or carries his own risk. Failure on the part of the employer to meet his compensation obligations does not deprive the injured workman or his dependents of compensation benefits. This obligation is assumed by the accident fund, which in turn has redress against the defaulting employer through an action at law. Under none of the laws in the United States does the State assume liability. In case of insolvency of the employer and insurance carrier the injured employee loses his compensation benefits.

7. In Canada the workmen's compensation boards have exclusive and final jurisdiction over all compensation matters, no appeal to the courts being permitted except in New Brunswick and Nova Scotia. In these two Provinces appeal may be had to the supreme court upon questions of law, but only with the permission of the judge of said court. In none of the States of America does the administrative commission have final jurisdiction. In every State

appeal may be had to the courts upon questions of law and in many of the States upon questions of fact.

8. In Canada members of the workmen's compensation boards hold office during good behavior, except that in British Columbia the term of office is 10 years. In most of the Provinces, however, they are subject to compulsory retirement at the age of 75. Each board is authorized to appoint its officers and employees and to fix their salaries. The term of office of such employees is subject to the pleasure of the board. In the United States the term of office of compensation commissioners is usually 3, 4, or 5 years.

9. As regards liberality, the benefits of the Canadian laws are about on a par with the more liberal of the American acts. The scale of benefits is considerably lower, but on the other hand the periods for which benefits are paid are much longer. In Canada compensation is usually paid during disability or until death or remarriage of the widow, while in most of the States the compensation periods terminate at the end of 300, 400, or 500 weeks. In none of the Provinces (Yukon excepted) is the waiting period over 1 week, and in most of the laws compensation when payable begins from the date of the injury, whereas in the United States 7 States have a waiting period of 10 days and 13 States of 2 weeks. In all of the Canadian laws the amount of compensation in case of disability is 55 per cent of the employee's earnings, except that in Quebec the percentage is 50; in the United States 20 States have a percentage of 60 or greater. The early Canadian laws did not provide for medical benefits, but some of the Provinces have recently made provision therefor; in the United States 42 of the 45 States provide medical service. All but five of these States, however, place some limitation upon the amount of the medical service which the employer is required to furnish.

COMPENSATION AND INSURANCE SYSTEMS.

3

All of the Canadian laws are compulsory as to employers coming within the scope of the act. In the five Provinces of Alberta, British Columbia, New Brunswick, Nova Scotia, and Ontario 3 all employers must contribute to the accident fund. Quebec and Yukon Territory have no State fund nor are employers in these jurisdictions required to insure. Manitoba has a hybrid system. Employers are required to insure in private casualty companies or provide selfinsurance. Such insurance companies or self-insurers, however, must contribute to the accident fund. They must also contribute 7 per cent of their premiums to the administration fund.

Except employers enumerated in schedule 2, which includes municipalities, and railroad, express, telephone, telegraph, and navigation companies. Employers in these industries are individually liable, though they must deposit funds with the board, which pays the compensation direct to the injured employee.

Out of these accident funds, which are managed by the workmen's compensation boards, are paid all compensation claims. The board classifies the industries according to the hazard, fixes and collects premiums, receives and investigates claims, grants awards, and pays the compensation benefits. As already noted, the workmen's compensation board assumes liability. Injured workmen are always paid direct by the board from the accident fund irrespective of whether or not the employer is insured or carries his own risk. Failure on the part of the employer to meet his compensation obligations does not deprive the employee of his compensation benefits. This obligation is assumed by the accident fund, which in turn has redress against the defaulting employer through an action at law.

SCOPE OR COVERAGE.

The scope or coverage of the Canadian laws is more restricted than that of most of the American acts. In all of the Provinces (Yukon excepted) the employments covered are limited to enumerated hazardous industries. Agriculture and domestic service are universally excluded. Most of the laws also exclude outworkers, traveling salesmen, nonhazardous clerical occupations, nonhazardous public employments, and casual employees employed otherwise than for the purpose of the employer's business. Alberta also excludes railroads. Moreover, the workmen's compensation boards have been given discretionary power both to increase and to decrease the scope of the acts by adding to or subtracting from the industries enumerated in the statute. Under this authority the original statutory scope of the acts has been considerably changed. Many new classes of industries have been added; others have been excluded. In addition, the Ontario board has exempted certain classes of employers having less than a stipulated number of employees. The policy of the boards in including and excluding certain industries is apparently determined by the hazard of the particular industry and by the administrative difficulty of collecting premiums in the case of small employers. Exempted employments usually are given the privilege of coming under the act if either the employer or employee so desires.

Under all of the Canadian laws employees injured without the Province are entitled to compensation benefits if the place of business of the employer and the usual place of employment of the workmen are in the Province. The following provision found in the Alberta law is typical of that in the laws of practically all the Provinces:

(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 act if it had happened in the Province, the workman or his dependents shall be entitled to compensation under this act—

(a) If the place or chief 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 an accident happens to a workman who is a resident of 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.

(2) Except as provided by subsection 1, no compensation shall be payable under this act where the accident to the workman happens elsewhere than in the Province. Table 36 shows more in detail the scope of the several Canadian compensation acts:

TABLE 36.-SCOPE OF CANADIAN COMPENSATION LAWS.

Alberta...... Alberta..... Alberta..... Alberta..... Alberta..... Alberta (nonhazardous munici

ACCIDENTS AND OCCUPATIONAL DISEASES.

Canadian compensation laws cover both accidents and occupational diseases. The provisions of the British act, both as to content and phraseology, have been adopted practically without change in nearly all of the Provinces. Every law except Quebec uses the phrase "personal injury by accident arising out of and in the course of the employment, unless it is attributable solely to the serious and willful misconduct of the workman." In four Provinces,* however, injuries due to willful and serious misconduct are compensable if they result in death or serious disability. In addition, New Brunswick excludes injuries if intentionally self-inflicted, due to intoxication, or caused by a fortuitous event not connected with the industry. Quebec also excludes intentionally self-inflicted injuries, while Yukon excludes those caused by intoxication.

4 Alberta, British Columbia, Manitoba, and Nova Scotia.