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WSIAT FINDS LIMITATIONS ON
MENTAL STRESS UNCONSTITUTIONAL
On
April 29, 2014, Ontario's Workplace Safety and Insurance Appeals Tribunal
(the "Tribunal") issued a significant decision regarding
entitlement to benefits for chronic mental stress under the Workplace
Safety and Insurance Act, 1997 ("WSIA"). In Decision
No. 2157/09, the Tribunal found that the provisions in the WSIA
limiting entitlement to mental stress that "arises from an acute
reaction to a sudden and unexpected event" violate the equality
guarantee in section 15 of the Canadian Charter of Rights and Freedoms
(the "Charter") and are therefore unconstitutional. The
Workplace Safety and Insurance Board ("WSIB") policy
implementing these legislative provisions was also found to be
unconstitutional.
As
we discuss in this FTR Now, the Tribunal's decision in this case
is likely to have a significant impact on employers of all sizes, and
will likely increase the number of claims filed by employees who allege
that they have suffered mental stress as a result of the regular
stressors of the workplace. Employers are strongly encouraged to manage
these claims, and their workplaces, more carefully as a result of this
decision.
THE
DECISION
Decision No. 2157/09 involved a claim for
benefits under the WSIA by a nurse who had worked in a hospital
for 28 years. She alleged that, for a period of 12 years, she was subject
to ill treatment by a doctor with whom she worked. The Employer was aware
of this conduct, and the Tribunal found that the Employer took no steps
to deal with the purported mistreatment, and reduced the worker's duties.
She further alleged that the doctor's conduct resulted in her being
diagnosed with an adjustment disorder with mixed features of anxiety and
depression. As a result of this illness, the worker was unable to work
and applied for benefits with the WSIB. There was no assault and no
threat of any physical violence.
The
worker's claim for benefits was denied by the WSIB. The WSIB relied on
subsections 13(4) and (5) of the WSIA, which provide as follows:
13 (4) Except as provided in subsection (5), a
worker is not entitled to benefits under the insurance plan for mental
stress.
(5) A worker is entitled to benefits for mental
stress that is an acute reaction to a sudden and unexpected traumatic
event arising out of and in the course of his or her employment. However,
the worker is not entitled to benefits for mental stress caused by his or
her employer's decisions or actions relating to the worker’s employment,
including a decision to change the work to be performed or the working
conditions, to discipline the worker or to terminate the employment.
The
WSIB denied the worker's claim for benefits because it did not satisfy
the requirements of subsection 13(5) or the WSIB's policy, as the mental
stress she suffered was not "an acute reaction to a sudden and
unexpected traumatic event."
The
worker appealed the WSIB's decision to the Tribunal. In an interim
decision (Decision No. 2157/09I), the Tribunal concluded that the
worker would have had entitlement to benefits but for the exclusions in
subsections 13(4) and (5) of the WSIA. The worker then challenged
the constitutionality of these sections.
In
her challenge, the worker submitted that the provisions of the WSIA
limiting entitlement to chronic mental stress violated the Charter's
equality guarantee because they drew an unnecessary and discriminatory
distinction between those with mental disabilities and those with
physical disabilities. In this regard, the worker alleged that the
practical effect of subsections 13(4) and (5) was to prohibit entitlement
for mental disabilities in circumstances where entitlement would be
granted for physical disabilities. In the worker's view, this placed an
additional hurdle in front of individuals who had mental disabilities,
who were already a historically disadvantaged group.
Ontario's
Attorney General provided submissions supporting the constitutionality of
subsections 13(4) and (5) of the WSIA. The Attorney General relied
on the fact that it is notoriously difficult to diagnose mental disorders
and determine what caused them. In the Attorney General's view,
subsections 13(4) and (5) merely operated as a statutory codification of
these difficulties and operated to limit entitlement to mental stress for
those cases where the mental stress was clearly work-related.
The
Employer did not participate in the appeal and therefore did not provide
any submissions regarding the constitutionality of subsections 13(4) and
(5) of the WSIA. The Employer also did not provide any submissions
on the underlying facts supporting the worker’s claim.
The
Tribunal granted the worker's appeal and held that subsections 13(4) and
(5) of the WSIA and the WSIB's Traumatic Mental Stress Policy
violated section 15(1) of the Charter on the basis that limiting
entitlement for mental stress to situations of "an acute reaction to
a sudden and unexpected traumatic event" was substantively
discriminatory both in perpetuating prejudice and disadvantage, and
failing to correspond to the actual circumstances and characteristics of
workers with mental disabilities. The Tribunal found that the WSIA
and the Traumatic Mental Stress Policy improperly place additional
restrictions on granting benefits to workers with mental disabilities
that do not exist for workers with physical disabilities.
The
Tribunal specifically rejected the Attorney General's argument that the
difficulty in demonstrating causation in the case of mental disabilities
was a justification for treating them differently than physical
disabilities. In the Tribunal's view, any such difficulty could be
overcome by the application of the general principles of causation, as
set out in the Tribunal’s jurisprudence.
In
the result, the Tribunal held that subsections 13(4) and (5) of the WSIA
contravened section 15(1) of the Charter and could not be saved by
section 1 of the Charter. Therefore, the Tribunal declined to
apply either of these provisions or the WSIB's Traumatic Mental Stress
Policy to the circumstances of the case. Accordingly, the Tribunal held
that the worker was entitled to benefits for chronic mental stress.
The
Tribunal declined to comment on the constitutionality of the portion of
subsection 13(5) that precludes entitlement for mental stress arising out
of decisions or actions of the employer relating to the employment
relationship. This issue has been left for determination in another case.
IMPLICATIONS
FOR EMPLOYERS
At
present, Decision No. 2157/09 only has an immediate impact on the
claim at issue in that appeal, since the Tribunal is technically not
bound to follow its own decisions. However, the decision will be highly
persuasive in any future appeals on this issue at the Tribunal. From the
Tribunal's perspective, the WSIA no longer limits entitlement for
mental stress to traumatic mental stress claims. Chronic mental stress
claims are now eligible for compensation.
The
Tribunal's ruling in Decision No. 2157/09, if applied in other
cases, will have a significant impact on all of Ontario's employers. It
significantly expands the scope of entitlement for mental stress under WSIA
and will put increased pressure on employers to limit and address
stressors in the workplace. All employers, specifically those with
stressful workplaces, will need to take additional steps to reduce
workplace stress in order to limit costly and complicated stress-related
lost time claims.
Decision No. 2157/09 may not have an immediate
impact on decisions made by adjudicators at the WSIB level. The Tribunal
limited its remedy to the specific case before it. It is, therefore,
unclear whether the WSIB will continue to apply its Traumatic Mental
Stress Policy. Accordingly, until the situation is clarified, there is
likely to be significant inconsistency between decisions of the WSIB and
those at the Tribunal level. There is also likely to be a significant
increase in appeals to the Tribunal, as well as requests for
reconsideration flowing from Decision 2157/09.
Employers
are encouraged to closely monitor this issue. As the WSIB considers how
to address this decision, it will be important for employers to remind
the WSIB of the importance of clear evidence and a careful review of
files in assessing psychological entitlement.
Employers
who have ongoing mental stress cases should ensure that the events giving
rise to these cases have been, and continue to be, well documented. More
generally, employers should be reviewing their practices, policies and
procedures in order to ensure that they are protecting themselves to the
extent possible from potential mental stress claims.
The
articles in this Client Update provide general information and should not
be relied on as legal advice or opinion. This publication is copyrighted
by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or
reproduced in any form, in whole or in part, without the express
permission of Hicks Morley Hamilton Stewart Storie LLP. ©
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