by Administrator21. August 2014 10:47

Every once in a while, precedents are set that benefit employees. It is important that lawyers who advocate for human rights - including for equality, fair treatment, disability rights, equal access to the law, health and safety concerns, workplace rights, assist in spreading the word. 

Everyone is affected by workplace stress. Sometimes workplace stress causes ascertainable and diagnosable mental disorders that require time away from work. Everyone should be aware of their newly won rights to receive workers' compensation benefits in Ontario in such circumstances.

This blog is about one of these precedents. 

The Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found the prohibition against benefits entitlements for mental stress claims is unconstitutional. In Decision No. 2157-09, the  WSIAT refused  to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, (“WSIA”) on the basis that these exemption provisions violate the equality rights provisions of the Canadian Charter of Rights and Freedoms. 

In Ontario it is generally understood that insured employees  are entitled to benefits from the Workplace Safety and Insurance Board (“WSIB”) if they are injured in the workplace or suffer a work-related injury.  This general statement of entitlement  is set out in section 13 of the WSIA. 

However, there has been a general exemption to benefit entitlement. This exemption is set out in section 13(4) of the WSIA:  “... a worker is not entitled to benefits under the insurance plan for mental stress.”  Presumably this exemption is there because of the floodgates concerns  - the cost of insuring such benefits would be borne by employers - plus the cost-related concerns that of the alleged and presumed unreliability of establishing causation between workplace incidents and mental stress claims. 

The exemption  was recently successfully challenged  on the basis that subsections 13(4) and  13(5) violate  the equality rights provision of the Charter. 

The claimant worker was a nurse at a hospital. The worker claimed entitlement for mental stress resulting from ill treatment by one of the doctors, from 1990 and continuing to June 2002.  The ill treatment is reported to have included yelling at the worker and demeaning her in front of both colleagues and patients.  The ongoing mistreatment culminated in an incident where, when attempting to carry out her duties,  the doctor continually and repeatedly  interrupted her intake interviews with patients,  told her to “shoo” and closed the door on her heels.  The worker felt that the doctor  interfered  with her ability to perform her job. She  brought her concerns to management. The employer's response that  her responsibilities would be significantly reduced.

Shortly after this demotion, the worker felt that she could no longer continue working at the hospital.  She sought medical and psychiatric treatment and was diagnosed with an adjustment disorder with mixed features of anxiety and depression which were attributed to workplace stressors.

The worker filed a claim for benefits with the WSIB. The claim was not approved  on the basis that benefits for mental stress claims were prohibited.   The worker appealed.  

For the reasons set out in Decision No. 2157/09I, the WSIAT determined that the worker would have entitlement for mental stress under the WSIA, but for subsections 13(4) and (5).  The worker subsequently challenged sections 13(4) and 13(5) on the grounds that they violated the Charter equality rights protection. .

The WSIAT  held  that section 13(4) and 13(5) created a distinction based upon the ground of mental disability that is substantively discriminatory and in violation of Charter equality rights.  By  prohibiting benefits for mental stress claimants, sections 13(4) and 13(5) of the WSIA forced these individuals to pursue more complicated and costly tort remedies, requiring that they prove negligence as a prerequisite to receiving compensation. This  deprived  them of the historic trade-off of the no-fault workers' compensation scheme. With the conclusion that  the impugned provisions were substantively discriminatory,  the WSIAT proceeded to consider whether the statutory provisions could nevertheless be justified under s. 1 of the Charter, the "free and democratic society "functional requirement test."

Under the section1 analysis, the WSIAT found fault with the provision on three grounds: rational connection, minimal impairment and proportionality.  First, the panel determined that there was moderate evidence of an association between job strain and mental disorders and found that physicians are able to give reliable opinions about the causation of mental disorders.  On this basis, the panel found that there was no rational connection between the WSIA's prohibition on mental stress claims and the WSIA's stated purpose of providing no-fault compensation for injuries that arise out of an in the course of employment.  Second, the Panel found that the provisions did not impair the equality rights of mental stress claimants as minimally as possible as there were viable alternative policy approaches, as noted by evidence of policy and legislation in other provinces.  Finally, the Panel found that there was no proportionality between the harmful effects of the measure and any potential beneficial objectives it may have.

In conclusion, the WSIAT determined that sections 13(4) and 13(5) of the WSIA violated the equality rights provisions in the Charter, and were not justified under s. 1. The WSIAT therefore declined to give any effect to section 13(4) and 13(5).  The worker's right to compensation was restored.

The decision reminds us of the maxim, good facts make good law, and, to borrow from Bob Dylan, the 'times they are a changin" . We have awaited this result for a long time. It arrives at a moment when mental illness issues, such as those "caused" by relationships and within the  workplace environment - and at home and elsewhere - surface as one of the principal constructs of our speeded up and complex society and workplace environments, when we are gaining startling and emerging understandings of brain function, and where stigma related to mental disease is slowly but inevitably,  dissipating. 

While it is  likely that this very important WSIAT decision will be  judicially reviewed (the WSIAT and the governing provincial Liberals and Premier Wynne will make this call), in the meantime the successful elimination of the statutory obstacle to benefits for those suffering from workplace mental stress provides an opportunity for workers experiencing mental stress-related illnesses as a result of workplace stressors to file successful claims where the facts and the medical evidence support receipt of compensation benefits.

If you are a worker in Ontario and believe that you suffer from mental stress caused by your work or workplace, you may now be eligible for compensation from the WSIB.

Questions? Send us a note by email, or give us a call and schedule a Consultation.

Steven Sagle

Brian Shell  


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