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Mental stress provisions of Workplace Safety and Insurance Act, 1997, declared unconstitutional by WSIAT

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In a landmark decision that could have a significant impact on employers, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”, or the “Tribunal”) recently declared sections 13(4) and (5) of the Workplace Safety and Insurance Act, 1997 – which preclude entitlement to WSIB benefits for chronic mental stress – to be unconstitutional.

That decision, WSIAT Decision No. 2157/09, arose out of a worker’s claim for mental stress in circumstances where she had been diagnosed with “adjustment disorder with mixed features of anxiety and depression” after having been subjected to twelve (12) years of ill treatment by a co-worker.

Although the claimant’s health practitioners attributed her condition to workplace stressors, her claim was denied by the Workplace Safety and Insurance Board (“WSIB”, or the “Board”) because she did not have “an acute reaction to a sudden and unexpected traumatic event”, as required by subsections 13(4) and (5) of the Workplace Safety and Insurance Act, 1997 (the “Act”).

The worker appealed the Board’s denial of her claim to WSIAT; and, in an interim decision, the Tribunal determined that, but for sections 13(4) and (5) of the Act, the worker would have entitlement for mental stress.

Those sections contain the following provisions:

13(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and expected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Further to that interim ruling, the worker challenged the constitutionality of the impugned sections of the Act, alleging that they violate section 15 of the Canadian Charter of Rights and Freedoms, which stipulates that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The worker went on to argue that that violation could not be shielded by section 1 of the Charter, which permits the government to impose reasonable limits on Charter rights if those limits can be demonstrably justified.

In advancing her position, the worker contrasted sections 13(4) and (5) of the Act against sections 13(1) and (2) of the Act, the latter of which set out the preconditions for entitlement to benefits for disabilities other than mental stress, as follows:

13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

(2) If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is show.

In comparing sections 13(1) and (2) with sections 13(4) and (5) of the Act, the Tribunal noted the statute’s distinction between so-called “physical-mental” claims (which are dealt with under sections 13(1) and (2)) and “mental-mental” claims (which are dealt with under sections 13(4) and (5)), and observed that:

  • On the one hand, “physical-mental” claims, for which benefits are provided under the Act, involve situations in which a psychiatric condition is raised by a worker after a claim for a physical injury has already been recognized and, therefore, are not subject to sections 13(4) and (5) of the Act; however,
  • On the other hand, “mental-mental” claims which arise directly from workplace circumstances that do not involve a physical injury will not be characterized as disablements under the Act unless they arise out of circumstances that are “traumatic”, “sudden” and “unexpected” in the worker’s line of work.

Further to that comparison, WSIAT recognized that circumstances need not be “traumatic”, “sudden” or “unexpected” to permit the allowance of benefits for physical injuries; and the Tribunal therefore concluded 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 and the TMS policy to this appeal. Accordingly, the worker’s appeal is allowed.

Accordingly, the worker’s claim for initial entitlement for mental stress was granted, and the matter was directed back to the WSIB for determination of the precise nature and duration of benefits to be awarded.

This case is significant to employers for three main reasons:

  • First, it is notable that although the Attorney General made arguments to the Tribunal in support of the constitutionality of sections 13(4) and (5), the employer did not participate in the WSIAT hearing. The outcome in this matter reminds employers that they can be well-served to participate in Tribunal appeals where there are issues at stake that could have far-reaching policy implications for the employer’s workforce (and for the employer community at-large).
  • Second, although the Tribunal declined to apply sections 13(4) and (5) in this particular case, the fact is that (i) the Tribunal does not have jurisdiction to declare a provision of the Act to be universally unconstitutional, and (ii) neither the Tribunal nor the Board is bound by precedent. Accordingly, it remains to be seen how this decision will be applied to and impact upon future cases—and whether, for example, any worker seeking to avoid application of sections 13(4) and (5) of the Act will need to demonstrate an independent Charter violation. If other workers are put to the same legal challenge, other employers will have opportunities to participate in similar appeals and re-argue the constitutionality of sections 13(4) and (5) of the Act.
  • and Third, it may be that the provincial legislature responds to Decision 2157/09 by proactively modifying the Act to allow mental stress claims to be adjudicated according to the same rules as purely physical and “physical-mental” disablements. If so, employers are likely to see an increased number of allowed claims for mental stress and a corresponding increase in annual accident costs.

One way or the other, Decision 2157/09 has opened the door to further discussion and debate – and potentially legislative changes – in relation to claims for mental stress; and it has served to highlight the ever-increasing importance of promoting and protecting mental wellness in Ontario workplaces.

Ryan D. Campbell