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Focus: New law needed to address stress claims, lawyers argue

|Written By Michael McKiernan

The provincial legislature needs to act after a tribunal declared portions of the Workplace Safety and Insurance Act unconstitutional for the way they restrict certain claims for mental stress, according to a Toronto employment lawyer.

‘It is not at all impossible that the next time WSIAT looks at a case like this, they will turn right instead of turning left,’ says Jason Beeho.

In an April ruling, identified only as decision No. 2157/09, the Workplace Safety and Insurance Appeals Tribunal ruled two subsections of s. 13 of the act violated s. 15 of the Canadian Charter of Rights and Freedoms that protects against discrimination based on mental disability, among other things.

“In light of the tribunal ruling, which has declared a significant piece of legislation effectively invalid, the legislature will have to respond in order to clarify things,” says Brent Kettles, a member of the employment law group at Toronto’s Lenczner Slaght Royce Smith Griffin LLP.

The impugned sections of the act, introduced in 1998, set out the additional hurdles a worker claiming compensation for mental stress must clear. Under the provisions, workers can claim benefits only for mental stress “that is an acute reaction to a sudden and unexpected traumatic event” arising in the course of their employment. As such, they rule out claims for mental stress developing gradually over time due to workplace conditions.

By contrast, two other subsections that deal with physical injuries contain no such barriers with entitlement to benefits established as long as a claimant can show the injury occurred “arising out of” and “in the course of” the employment.

The claimant in the case at hand had to stop working as a nurse at a hospital in 2002 after enduring 12 years of ill treatment from a doctor she worked with who would yell at her, embarrass her in front of colleagues, and tell her to “shoo” in front of patients. A team leader approached by concerned colleagues about the matter took no action and the doctor’s behaviour continued, according to the decision. When the nurse herself approached the team leader, the employer effectively demoted her and she soon stopped work and sought psychiatric help.

The Workplace Safety and Insurance Board and its appeal division both rejected the nurse’s claim for benefits despite her diagnosis with an adjustment disorder with features of anxiety and depression that practitioners attributed to workplace stressors. When the case reached the tribunal, it found her appeal would have succeeded but for the additional criteria outlined in the act.

“The panel finds that the impugned statutory provisions and related policy create a distinction based upon the ground of mental disability that is substantively discriminatory, thereby violating the equality guarantee provided by section 15 (1) of the Charter. We also find that the impugned statutory and policy provisions are not justified under Section 1 of the Charter. The remedy is that the panel will not apply the impugned statutory provisions,” the three-adjudicator panel wrote in its April 29 decision.

“In a lot of ways, it represents the continuation of a trend that has been going on in various areas of law for a long time, where we are treating mental illness and stress in the same way as physical illnesses,” says Kettles.

In its decision, the panel, noting Alberta’s legislation adopts similar provisions, pointed to that province as a source of potential guidance to legislators and policymakers. However, its workers’ compensation board policy allows for “individual consideration of the circumstances as well as the exercise of discretion in an individual case” while also providing entitlement for “chronic onset psychological injury or stress” as long as the claimant meets certain criteria.

“In the panel’s view, the Alberta policy reflects an approach that permits flexibility and consideration of the needs and circumstances of the claimant group. The multifactorial approach is more directly aimed at establishing causation and impairs the equality rights of persons with mental disability to a much lesser degree,” according to the decision.

Ryan Campbell, a lawyer with Toronto employment law boutique Rubin Thomlinson LLP, says the decision should grab the attention of both employees and employers.

“For workers, as the workers’ compensation regime morphs to allow these types of claims, it will really broaden entitlement. For employers, it’s significant for the same reason,” he says.

However, Campbell’s colleague at Rubin Thomlinson, Jason Beeho, explained at a recent conference that without legislative amendments, claimants still face an uphill battle to get compensation for mental stress because legal precedent doesn’t bind the tribunal, which has no ability to declare an act universally unconstitutional. That means each individual claimant will have to make the same claim for unconstitutionality.

“No decision is binding strictly speaking on WSIAT in any subsequent case it might look at,” said Beeho at the Law Society of Upper Canada’s 15th annual employment law summit on Oct. 23.

And while he acknowledged Decision 2157/09 would be persuasive, Beeho suggested there are no guarantees future panels will view the issue the same way, especially considering the WSIB’s $9.5 billion in unfunded liabilities.

“It is not at all impossible that the next time WSIAT looks at a case like this, they will turn right instead of turning left. I think our inclination is to suspect that things are going to trend in a particular direction now given where WSIAT has gone with this. But there certainly ought not to be any expectation that the WSIB in particular, and in particular with its rather large unfunded liability, will be enthusiastic about embracing this decision and saying, ‘Well gee-whiz, we’ve got to start allowing more claims for traumatic mental stress,’ in a big hurry. . . . What this left turn doesn’t mean, though, is that all of a sudden these cases are going to be easy.”

  • Brian magrath
    Over many years I have developed a system by which most people can avoid the effects of ID [Incoming Distress], and prevent it becoming stress. Since this is available to an employer, it implies that employees may be taught the system and, after training, engage in a contractual relationship with their employer to adopt the workings of the system, and,presumably, indemnify the employer for losses resulting from an individual's claim about stress-related problems. This assertion seems to follow the rules and guidelines for worker's safety in the workplace, in which an employee can be deemed at fault if, for example, safety devices were not used prior to an accident situation.
    "If Distress wins, we all lose; if Distress is beaten, we win all"
    Sooner or later, these principles will be adopted by the more forward-thinking and profit-motivated employers, since the rates of stress-related absenteeism tends to reduce significantly when stress is avoided.

    Just a thought.
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