Law Times

Page 8 November 10, 2014 • Law Times www.lawtimesnews.com Workers compensation New law needed to address stress claims, lawyers argue BY MIcHAEl McKIERNAN For Law Times he provincial legis- lature needs to act after a tribunal de- clared portions of the Workplace Safe- ty and Insurance Act unconsti- tutional for the way they restrict certain claims for mental stress, according to a Toronto employ- ment lawyer. In an April ruling, identified only as decision No. 2157/09, the Workplace Safety and Insur- ance Appeals Tribunal ruled two subsections of s. 13 of the act violated s. 15 of the Cana- dian Charter of Rights and Freedoms that protects against discrimination based on mental disability, among other things. "In light of the tribunal rul- ing, which has declared a signif- icant piece of legislation effec- tively invalid, the legislature will have to respond in order to clar- ify things," says Brent Kettles, a member of the employment law group at Toronto's Lenczner Slaght Royce Smith Griffin LLP. The impugned sections of the act, introduced in 1998, set out the additional hurdles a worker claiming compensation for mental stress must clear. Un- der the provisions, workers can claim benefits only for men- tal stress "that is an acute re- action to a sudden and un- expected traumatic event" arising in the course of their employment. As such, they rule out claims for mental stress developing gradually over time due to workplace conditions. By contrast, two other subsections that deal with physical injuries contain no such barriers with entitle- ment to benefits established as long as a claimant can show the injury occurred "arising out of " and "in the course of " the employment. The claimant in the case at hand had to stop work- ing as a nurse at a hospital in 2002 after enduring 12 years of ill treatment from a doctor she worked with who would yell at her, embarrass her in front of colleagues, and tell her to "shoo" in front of patients. A team leader approached by concerned col- leagues about the matter took no action and the doctor's be- haviour continued, accord- ing to the decision. When the nurse herself approached the team leader, the employer ef- fectively demoted her and she soon stopped work and sought psychiatric help. The Workplace Safety and Insurance Board and its ap- peal division both rejected the nurse's claim for benefits despite her diagnosis with an adjustment disorder with fea- tures of anxiety and depression that practitioners attributed to workplace stressors. When the case reached the tribunal, it found her appeal would have succeeded but for the additional criteria outlined in the act. "The panel finds that the im- pugned statutory provisions and related policy create a distinc- tion based upon the ground of mental disability that is substan- tively 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 un- der Section 1 of the Charter. The remedy is that the panel will not apply the impugned statutory provisions," the three-adjudica- tor panel wrote in its April 29 decision. "In a lot of ways, it represents the continuation of a trend that has been going on in various ar- eas of law for a long time, where we are treating mental illness and stress in the same way as physical illnesses," says Kettles. In its decision, the panel, noting Alberta's legislation adopts similar provisions, pointed to that province as a source of potential guidance to legislators and policymak- ers. However, its workers' com- pensation board policy allows for "individual consideration of the circumstances as well as the exercise of discretion in an individual case" while also pro- viding entitlement for "chronic onset psychological injury or stress" as long as the claimant meets certain criteria. "In the panel's view, the Al- berta policy ref lects an approach that permits f lexibility and consideration of the needs and circumstances of the claim- ant group. The multifactorial approach is more directly aimed at establishing causation and impairs the equality rights of persons with mental disability to a much lesser degree," accord- ing to the decision. Ryan Campbell, a lawyer with Toronto employment law boutique Rubin Thom- linson LLP, says the deci- sion should grab the atten- tion of both employees and employers. "For workers, as the workers' compensation re- gime morphs to allow these types of claims, it will really broaden entitlement. For employers, it's significant for the same reason," he says. However, Campbell's colleague at Rubin Thom- linson, Jason Beeho, ex- plained at a recent confer- ence that without legislative amendments, claimants still face an uphill battle to get com- pensation for mental stress be- cause legal precedent doesn't bind the tribunal, which has no ability to declare an act uni- versally unconstitutional. That means each individual claim- ant will have to make the same claim for unconstitutionality. "No decision is binding strictly speaking on WSIAT in any subsequent case it might look at," said Beeho at the Law Society of Upper Canada's 15th annual employment law sum- mit on Oct. 23. And while he acknowledged Decision 2157/09 would be per- suasive, Beeho suggested there are no guarantees future pan- els will view the issue the same way, especially considering the WSIB's $9.5 billion in unfund- ed liabilities. "It is not at all impossible that the next time WSIAT looks at a case like this, they will turn right instead of turning left. I think our inclination is to suspect that things are going to trend in a particular direction now given where WSIAT has gone with this. But there certainly ought not to be any expectation that the WSIB in particular, and in particular with its rather large unfunded liability, will be en- thusiastic about embracing this decision and saying, 'Well gee- whiz, we've got to start allow- ing more claims for traumatic mental stress,' in a big hurry. . . . What this left turn doesn't mean, though, is that all of a sudden these cases are going to be easy." LT 'It is not at all impossible that the next time WSIAT looks at a case like this, they will turn right instead of turning left,' says Jason Beeho. Focus on Labour & Employment Law www.kuretzkyvassos.com Tel: (416) 865-0504 w Kuretzky_LT_Apr7_14.indd 1 14-04-02 9:08 AM T

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