On April 29, 2014, the Workplace Safety and Insurance Appeals
Tribunal (the Tribunal) issued a much-anticipated decision
addressing the constitutionality of limits to entitlement for
"mental stress" under the Workplace Safety and Insurance
Act, 1997 (the Act).
In Decision No. 2157/091 the Tribunal concluded that
subsections 13(4) and (5) of the Act as well as the Traumatic
Mental Stress policy of the Workplace Safety and Insurance Board
(the WSIB) infringe the Charter of Rights and Freedoms. As a
result of this ruling, the Tribunal Panel decided that the
appropriate remedy in the case was to decline to apply these
subsections or the WSIB policy and to allow the worker's appeal
for initial entitlement to benefits for mental stress.
The Panel made clear, however, that it was not ruling on the
portion of subsection 13(5) which restricts entitlement for
traumatic mental stress arising out of decisions or actions of the
employer relating to the worker's employment.
While the Panel declined to apply subsections 13(4) and (5) or
the WSIB's policy, they did not rule that the law and policy of
the WSIB is invalid. The Panel made clear that the
jurisdiction of an administrative tribunal does not extend so far
as to issuing a general declaration of invalidity. In other
words, the subsections have not been "struck down" by the
The decision has immediate application only to this specific
appeal. The WSIB has historically rejected to apply decisions
of the WSIAT to other cases where the Tribunal took a contrary
position to the WSIB on the scope of entitlement for mental
stress. We see no reason to expect the WSIB will deviate from
that history in this case. As a result, we expect that there
will be further battles over the constitutionality of sections
13(4) and (5) and the WSIB's policy on cases involving mental
stress where entitlement would be granted but for the application
of the legislation and Board policy. Until such a decision
becomes the subject of a judicial review or the government decides
to amend the legislation, there will remain uncertainty as to
whether such a claim or appeal for mental stress benefits will
Many decisions of the WSIB or the WSIAT have already been made
for which workers were denied benefits for mental stress as a
result of the application of ss. 13(4) and (5) or the WSIB's
policy. We anticipate that some of these workers (especially
those represented by experienced injured-worker's counsel,
unions, and labour organizations) may become the subject of
reconsideration applications by those workers. The potential
for a flood of WSIAT reconsideration cases following in the
footsteps of Decision 2157/09 is significant.
We would be pleased to assist employers in any case involving a
claim for mental stress with the WSIB or any appeal in respect of
such a claim. Our lawyers are capable of assisting employers,
in all such cases, in investigating and managing situations of
workplace conflict, harassment, bullying, and workplace violence
and assessing the risks associated with potential claims of
workplace mental stress.
1 The decision is not yet accessible on the website of
the Tribunal or through any online case law service. Until
such time that it is publicly accessible, we would be pleased to
provide employers with an electronic copy of the decision on
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