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 WSIAT.

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 succeed.

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 request.

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