On April 29, 2014, the Workplace Safety and Insurance Act
Tribunal ("WSIAT") issued a decision regarding a
worker's entitlement to benefits for chronic mental stress
under the Workplace Safety and Insurance Act ("the Act").
In its decision, the WSIAT determined that the provisions in the
Act which limit a worker's entitlement to coverage to stress
that "...arises from an acute reaction to a sudden and
unexpected event" violate the equality guarantee in s. 15 of
the Charter of Rights and Freedoms. The WSIAT found that the
infringement was not "saved" by s. 1 of the Charter, and
that consequently, both the legislative provisions and the WSIB
policy implementing them were unconstitutional.
The decision arose out of the denial of WSIB benefits to a nurse
who claimed that she had been subjected to ill treatment by a
colleague for a period of 12 years, resulting in chronic mental
illness that prevented her from working. There was no physical
assault or threat of violence – the injury was purely mental
in nature. Ultimately, the WSIB determined that the worker's
claim did not satisfy the requirement in s. 13 of the Act that a
worker will only be entitled to benefits for mental stress where
the stress is an "...acute reaction to a sudden and unexpected
traumatic event arising out of and in the course of
In reconsidering the WSIB's decision, the WSIAT determined
that the limitation on a worker's ability to receive benefits
in relation to mental stress was discriminatory, and served only to
perpetuate the prejudice and stigmas associated with mental
illnesses. The Attorney General of Ontario unsuccessfully argued
that the difficulty in demonstrating causation in the case of
mental illnesses constituted a justification for treating them
differently than physical disabilities. Disagreeing with this
approach, the WSIAT held that the relevant portions of s. 13 of the
Act, as well as the Board's Traumatic Mental Stress Policy with
respect to mental stress, were both unconstitutional, and should
not be applied.
IMPLICATIONS FOR THE JOHNSON CLAIM:
The implications for Laurie Johnson's WSIB claim are clear:
she is now more likely to be approved for benefits in relation to
the mental illnesses she claims are the result of workplace
harassment. If the WSIAT's position in Decision No. 2157/09 is
applied by the WSIB, Ms. Johnson will no longer need to demonstrate
that the mental stress she suffers from is the result of an acute
reaction to a sudden and unexpected traumatic event. The result is
a lower threshold for demonstrating that mental stress falls within
the WSIB regime. In sum, this WSIAT decision renders it more likely
that her mental illnesses will be covered by WSIB benefits.
It should be noted that, given the involvement of the Attorney
General of Ontario, there will likely be a judicial review of
Decision No. 2157/09. The implications it has for opening the
floodgates to workers' claims related to everyday stresses that
arise in the workplace are significant, and could be presumed to
result in substantially higher costs for both the provincial
government and employers (in terms of their premiums) alike.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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