Tuesday, 20 May 2014

WSIAT Strikes Down Exclusion of Non-Traumatic Stress Claims Based on Charter Violation

In an April 29, 2014 decision, running to 79 pages long, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard a constitutional challenge of subsections 13(4) and (5) of the Workplace Safety and Insurance Act.  Under those provisions, employees can only claim compensation for mental stress if it arises as “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”.  The claimant was a nurse who claimed that she had suffered from a mental disability following years of abusive and humiliating behaviour by a doctor at the hospital where she worked.  By virtue of the exclusionary language (and the Workplace Safety and Insurance Board’s Policy 15-03-02 (“Traumatic Mental Stress”), her claim was dismissed.  As a result, the employee brought a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the legislation discriminated against her, contrary to section 15, and that this limitation on her right to equal treatment could not be justified.
After an extensive review of the evidence from two experts on the causative relationship between workplace stress and mental illness, the WSIAT Panel concluded that the claimant had established that there was a moderate association between workplace stressors and forms of illness, such as depression and adjustment disorder.  Moreover, the Panel accepted that individuals with mental illness brought on by longer-term stressors (such as a pattern of workplace bullying) did experience substantive discrimination in being excluded from coverage.  While individuals with physical injuries that arose due to prolonged exposure or gradual onset were protected from income loss, individuals with mental disabilities did not receive the same treatment.  The Panel also rejected the argument on behalf of the Attorney-General that these types of claims were excluded due to the virtual impossibility of being able to establish that they were caused or significantly contributed to by workplace issues. The Panel observed that establishing a causal link between work activities and other physical ailments can be equally challenging, but that this is no reason to exclude coverage.
In short, the Panel found that the denial of equal treatment for claimants with non-traumatic stress conditions was contrary to the Charter, as it relied on or supported stereotypes of persons with mental disabilities, and that the Attorney-General had not established that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.   As a result, Tribunal declining to apply subsections 13(4) and (5) of the Act, or the Traumatic Mental Stress Policy.  Given that the Panel had previously held that the claim would succeed, but for those provisions and the Policy, the Tribunal upheld the appeal and the claimant was granted entitlement to benefits.
As was argued by the Attorney-General at the hearing of this matter, there is fear that permitting WSIB claims of this nature will “open the floodgates”.  However, it is too early to tell.  It should be acknowledged that prior to 1997 these provisions were not in the Act, and it does not appear that mental stress claims threatened the financial viability of WSIB at that time.  It is also quite possible that the Government will take this matter to court on judicial review.  Even so, the courts tend to show great deference to the Board and the Tribunal due to their special expertise.  Stay tuned for any further developments …
Do you have a WSIB issue or need general advice on the Act?  Feel free to contact Lance Ceaser at Ceaser Work Counsel for cost-effective, expert guidance.


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