In a recent decision, the Workplace Safety and Insurance Appeals Tribunal determined that the Workplace Safety and Insurance Act, 1997 and Workplace Safety and Insurance Board (WSIB) policy eligibility requirement of “sudden traumatic onset” of mental stress is in violation of the Canadian Charter of Rights and Freedoms.
This controversial ruling arose from an Appellant nurse’s account of harassment and bullying which she suffered at the hands of a fellow employee for over twelve years. She also explained being re-victimized when she was effectively demoted after reporting the incidents to a team lead. As a result, the nurse explained that she was unable to continue working and was eventually diagnosed with an adjustment disorder with mixed features of anxiety and depression.
The Appellant filed a workers’ compensation claim for mental stress. The claim was denied on the basis that she did not have “an acute reaction to a sudden and unexpected traumatic event” as required by sections 13(4) and (5) of the Act and the WSIB’s Operational Policy Manual on Traumatic Mental Stress.
On appeal before the Tribunal, the Tribunal identified the issue to be decided as whether the Act and the Policy create a distinction based upon an enumerated or analogous ground in contravention of the equality guarantee in section 15 of the Charter.
Ultimately, the Tribunal granted the Appellant nurse entitlement for mental stress after finding that the requirements, instituted in 1998, treated applicants with psychological claims differently from applicants with physical claims in an unjustifiable contravention of the right to be treated equally.
The Tribunal’s decision addressed in great detail the purpose and effect of the sections dealing with mental stress and found a few distinctions. First, there was a distinction based on work-related gradual onset mental disability in comparison with work-related gradual onset physical disability. Secondly, there was a distinction between claimants for mental stress who had not experienced a “sudden traumatic event” in comparison with those who had experienced a “sudden traumatic event” and/or had experienced physical injuries.
The effect of these distinctions, the Tribunal concluded, was that workers who had not experienced a “sudden traumatic event” were treated differently and discriminatorily. Further, workers with a mental disability were prevented from accessing benefits through disablement which are available to workers with physical disability.
In rejecting all arguments made in defence of the Act and the Policy, the Tribunal held that the lack of evidence regarding the work-relatedness of mental disorders and the lack of clinical methods for assessing the work-relatedness of chronic mental stress claims is not distinguishable from physical injury claims to the extent that it warrants treatment which is different from physical injuries and diseases. Furthermore, this distinction creates a disadvantage by perpetuating prejudice or stereotypes.
The Tribunal applied section 1 of the Charter of Rights and Freedoms to determine whether, regardless of the Act and Policy’s violation of section 15 of the Charter, the violation may be demonstrably justified in a free and democratic society. Once again, the Tribunal found in the Appellant’s favour, concluding that provisions dealing with mental stress do not represent a reasonable or equitable approach to the identified purpose of establishing the work-relatedness of mental disorders.
As a remedy, the Tribunal allowed the appeal and declined to apply the sections of the Act and the Policy which deal with mental stress.
The Ministry of the Attorney General of Ontario, who participated in the hearing, has not yet announced whether it will judicially review the decision.
Although this decision does not have general application to all psychological injury claims, employers need to be aware of this ruling, as it may result in a greater influx of mental disability and addiction claims by virtue of the Tribunal’s lowering of the threshold for eligibility. Many provincial jurisdictions have similar limitations on psychological injury claims, and similar applications will likely be brought in those jurisdictions.