As discussed supra, the origin of workers' compensation lies in Germany which spread to Britain and the rest of the world.209 Ison indicated that the body of Canadian legislation was drawn from England and France but distinctly Canadian jurisprudence started with the work by Meredith on compensatory law.210 The crucial language was derived from the British Law but preference was given to features from German and American legislation which resulted in legislation sui generis to Canada.211 The work of Meredith culminated in the promulgation of the Workmen's Compensation Act named: An Act to provide for Compensation to Workmen for Injuries sustained and industrial Diseases contracted in the course of their Employment, S .0 .1914, c. 25.212
Although some Canadian provinces promulgated compensatory laws as early as 1902,213 the Canadian province of Ontario was the first to embark on comprehensive research on the subject before enactment of legislation with the appointment of Chief Justice Meredith to head a Royal Commission of Enquiry.214 The Ontario, Workmen's Compensation Commission, Final Report on Laws Relating to the Liability o f Employers (1913) (hereinafter: Meredith Report) sets out principles that would influence not only Ontario but Canada as a whole and international law on compensatory law.215 The South African Workmen's Compensation Act of 1941
208 Ibid [36].
209 Association of Workers' Compensation Boards of Canada. [Sa]. History o f workers' compensation.
Retrieved on 17/03/2012 from http://www.awcbc.org/en/historyofworkerscompensation.asp.
2“ Ison 1996: 8 0 7 -8 3 3 . 211 Ison 1 9 8 9 :1 . 2« Ison 1996: 807 -8 3 3 . 213 Le Roux 11.
214 See Chapter 2 fn 209 supra. See also Chapter 2 fn 2 1 6 -2 1 8 , 238 & 240 infra.
215 Ison 1996: 8 0 7 -8 3 3 .
was based upon the principles laid down in the Meredith Report and as COIDA in essence is an amendment of the 1941 Act, it is the same principles still governing the current South African statute.216
Meredith217 laid down the following principles218 in his Report based on his international research into the compensatory laws of countries like Germany, France, Belgium, England and the USA:
• No-fault principle: the right to compensation to injured workers without regard to negligence and in return employers are shielded against law suits and claims for damages.
• Collective liability: all employers share collectively in the costs of benefits to injured employees inclusive of universal mandatory coverage. A system that creates security of payment by an independent organ of state with exclusive jurisdiction to determine compensation claims, collect and administer employer contributions, inquire into, hear and decide on relevant matters, where the employer's ability to pay is of no consequence any longer and payment to the worker is guaranteed from an accident fund.
• Security of payment: payment of compensation will not be defeated by the insolvency of the company or protracted appeals in court.
• Administration by an independent organization.219
216 Ison 1996: 8 0 7 -8 3 3 . Although the Commissioner at the time referred to the "first Workmen’s Compensation Act" it can safely be assumed reference was made to the 1941 Act as the 1934 Act was mostly copied from the British Workmen's Compensation Act, 1925 as is clear from the Foreword, Preface and contents of Frank who quoted the relevant sections from the British Act and case law through his work in assistance for the purpose of interpretation.
217 Ison 1996: 8 0 7 -8 3 3 . Over the following years, other Canadian provinces followed with commissions similar to the Meredith Commission e.g. the British Columbia Workmen’s Compensation Board Inquiry, Report of the Commissioner, the Hon. Gordon McG. Sloan of 1952 and the Commission to Inquire into and Investigate Every Aspect of the Workmen’s Compensation Act, Report of the Commissioner, W.F.A. Turgeon, the Workmen’s Compensation Act, Manitoba of 1958.
218 Douglas, DG, Mastoras, J & Liversidge, LA. 1995. A guide to workers' compensation in Ontario.
Toronto: Canada Law Book. At 1 the authors remarked that "Despite the many changes that have been effected to the Act since 1914, the basic premise of the Act and its objectives remain largely unaltered." See also Knight, J, Kontra, C & Channel, B. 2010. Ontario Workplace Safety and Insurance A ct Quick reference. Toronto: Carswell. At 1.
219 Ontario Workplace Tribunals Library. 2009. Workers’ compensation law: A documentary history in Ontario. At 1-2. Retrieved on 10/08/2012 from http://www.owtlibrary.on.ca/english/print/wcl.pdf.
These principles known as the “historic trade-off’220 influenced the development and interpretation of compensatory legislation until today and are still applied by the courts and taken into account in the consideration of legislative changes.221
Developments were introduced with time as the need arose generally based on reports e.g. Middleton Report: The Report o f the Commissioner in the m atter o f The Workmen's Compensation Act 1932;222 the Roach Report (1950)223 enquired and reported inter alia on compensation scales, payment of claims, occupational diseases, assessments, appeals, rehabilitation224 and the composition of the Board;225 the McGillivray Report (19 6 7 )226 concentrated on the operation and structure of the Board; the Task Force (1973) again examined the administration of workers’ compensation.227 Weiler228 (1980),229 was appointed under pressure from the Union of Injured Workers to do a comprehensive inquiry into all aspects pertaining to workers' compensation230 and it led to fundamental changes in the benefit scheme by introducing a dual system aiming to replace actual wage loss
220 See furthermore Chapter 3 paras 4.2.4 & 5.2; Chapter 4 para 3.2.2 (Puddicombe); also Chapter 5
& Chapter 6.
221 IAVGO Community Legal Clinic. 2011. WSIB Funding Review: Submissions oflAVGO Community Legal Clinic. At 5-8. Retrieved on 24/07/2013 from
http://www.wsibfundingreview.ca/pdf/IAVG0%20submission.pdf.
222 Ontario Workplace Tribunals Library 2.
223 Ontario (Lieutenant Governor). 1950. Report on the Workmen’s Compensation Act. Toronto:
Baptist Johnston. The Honourable Mr. Justice Roach, Commissioner was appointed to inquire into and report upon, and to make recommendations regarding The Workmen’s Compensation Act upon subjects other than detail administration. Retrieved on 11/08/2013 from
http://www.ontla.on.ca/library/repository/mon/25007/15417.pdf.
224 Ibid 106 distinguished between medical rehabilitation and vocational rehabilitation which includes return-to-work. No formal programmes to the latter were in place at the time but employers were expected to provide suitable work placements for injured workers similar to the current regime under COIDA.
225 Ontario Workplace Tribunals Library 3.
226 Ibid 3.
227 Ibid 3.
228 Ontario (Provincial Government). Ministry of Labour. 1980. Reshaping workers' compensation fo r Ontario. Toronto: Ministry of Labour. Hereinafter: Weiler Report. Weiler reasons that
workers’ compensation is placed between tort liability and social welfare as a mechanism of compensation for loss of income at 13. Retrieved on 11/08/2013 from http://archive.org/details/reshapingworkersOOweil.
229 Ontario Workplace Tribunals Library 6 -7 , The first Weiler report explored the philosophical foundations of workers’ compensation and proposed changes to the benefits scheme and the second report dealt with occupational diseases and the third report (1981) revisited the proposed benefit scheme and introduced a dual system replacing the "actual wage loss" system with a system of "projected wage loss".
230 Ontario Workplace Tribunals Library 4 -6 .
basis with a projected wage loss system231 taking into account factors such as the employee's vocational characteristics, prospects for rehabilitation232 and the availability of suitable employment with regard to the employee's reduced capacity as well as compensation for pain and suffering.233 It also introduced the creation of the Workers' Compensation Appeals Tribunal, a tripartite structure with representatives from employers and employees under the chairmanship of a neutral party; as well as, consultative and advisory services for employers and employees in the form of the Office of the Worker Advisor and Office of the Employer Advisor.234