Law Times

Law Times • February 24, 2014 Page 13 www.lawtimesnews.com Lawyers debate impact of new mental-health standard ust over a year aer the launch of a new standard for workplace mental health, to what extent is it raising the bar for employers em- broiled in litigation? e national standard for psychological health and safe- ty in the workplace is a set of guidelines, tools, and resources aimed at promoting employees' mental health. Although the standard devel- oped by the Canadian Standards Association and the Bureau de normalisation du Québec is vol- untary, it could well become an- other weapon available to plain- tiff lawyers, says Stuart Rudner of Rudner MacDonald LLP. "It will come to repre- sent an explanation of at least a standard of care," he says. "If an employer is sued for not taking reasonable steps to pro- tect people's well-being, it may be used against them that they chose not to follow the standard," he continues. "I can conceivably see counsel for an employee arguing that an employer could've taken steps [to meet the standard]," he adds. e standard includes de- tailed guidance on measures such as establishing commitment, leadership, and participation; understanding the diverse needs of employees; maintaining confi- dentiality; and collecting data. It comes as employers are fac- ing a growing number of claims from staff or former employees alleging psychological harm from their work environment. e courts seem to be "recog- nizing that these raise legitimate concerns and having a toxic work environment can cause construc- tive dismissal," says Rudner. "We're seeing more and more claims being made on that basis," he adds. "e question of psychologi- cal health and safety has been becoming more prevalent," says Madeleine Loewenberg, an em- ployment lawyer at Norton Rose Fulbright Canada LLP. But these increasingly com- mon claims aren't always easy for employers to defend, she adds. "When you're dealing with men- tal-health claims, you oen can't see the disability." at makes it very important for employers to consider what objective evidence they have in front of them. Accessing medical advice, ideally from a specialist who has seen the patient on mul- tiple occasions, can be critical. But that, of course, generally requires the employee to consent to disclosing the information. But it may be in the employees' best interests to disclose medical records if, for example, they help to explain workplace behaviour deemed to be inappropriate. In other instances, it can be more difficult to locate useful medical information that might help with a case. Loewenberg doesn't think the psychological standard necessar- ily makes it any more difficult for employers to defend themselves against a claim. "In respect of occupational health and safety, we've seen pros- ecutions under the act where the court has referenced the [other] CSA standards. Arguably, the court could look at these stan- dards in determining whether an employer has met all its duties," she says. But there are other provisions in the Occupational Health and Safety Act that deal with violence and harassment and it's "quite possible that the regulators would have difficulty proving that this additional standard should apply over and above the specific provi- sions in the legislation," she adds. It's an area of law that has de- veloped relatively quickly. e March 2000 decision of Shah v. Xerox Canada Ltd. was an early step in case law recogniz- ing that constructive dismissal could flow from psychological harassment. In Shah, the Ontario Court of Appeal deemed a manager's bul- lying behaviour to amount "not just to a change in a specific term of the employment contract but to repudiation of the entire em- ployment relationship." e appeal court found Xerox' treatment of Shah "demonstrated that it no longer intended to be bound by the employment con- tract, and that it had, therefore, constructively dismissed Shah." at's not to suggest the evo- lution in the case law has always benefited employees. In the 2010 case of Piresferreira v. Ayotte, for example, the appeal court found employees couldn't claim dam- ages for negligence inflicted on psychological health. And for now, the stigma at- tached to admitting a mental- health problem inevitably serves as a deterrent to some claims, Rudner suggests. Although he and Loewenberg think employers should be aware of the standard, evaluating its im- pact in the short term isn't easy. While a Mental Health Com- mission of Canada spokeswom- an says organizations aren't asked to formally sign up to the stan- dard, more than 16,000 unique users have downloaded it from the organization's web site. However, a three-year re- search project is tracking the im- pact of the standard on a group of 20 organizations that include a law firm, Bernardi Human Resource Law LLP. e commission has also de- livered presentations to the legal community and "paired up" with law firms, including the now-col- lapsed Heenan Blaikie LLP, the spokeswoman said. Recommendations from the national standard for psy- chological health and safety in the workplace • Have senior management ap- prove a policy statement out- lining a systematic approach to psychological health and safety. • Engage workers in policy de- velopment and data gathering. • Develop and maintain a documented risk mitigation process. • Collect data such as rates of turnover, absenteeism, health assessments, health risks, in- cident report reviews, relevant laws, and regulations. • Solicit input of diverse pop- ulations. • Identify potential critical events where psychological harm is likely to occur. • Make external parties aware of the policies. • Carry out internal audits. LT FOCUS Order # 804218-65203 $398 2 volume looseleaf supplemental book 3-5 supplements per year Supplements invoiced separately Anticipated upkeep cost – $291 per supplement 0-88804-218-3 Shipping and handling are extra. Prices subject to change without notice and subject to applicable taxes. 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