Law Times

Page 12 OctOber 16, 2017 • Law times www.lawtimesnews.com FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. We offer unparallelled expertise for your most catastrophic injury cases. Direct access to hundreds of specialists from all areas of healthcare expertise. A top provider of cost of care reports for your most catastrophically injured clients. More than 2,000 malpractice, personal injury and class action cases. More than 300 lawyer clients assisted. Serving lawyers across Canada. Also, the United States, United Kingdom, Australia and Caribbean. LEARN MORE: CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 Since 2001, we've become a leader in Expert Witness Services in Canada. onnect Medical_LT_June12_17.indd 1 2017-06-06 1:07 PM them in exactly the same place as before — they're barred from making claims by legislation that the tribunal has already found unconstitutional several times." A Superior Court application led by Toronto labour law firm Goldblatt Partners LLP aims to plug that gap in the new law. Acting on behalf of the Ontario Network of Injured Workers Groups and Injured Workers Consultants, as well as an indi- vidual claimant, the firm wants a judge to declare the bar on men- tal claims invalid for all claims relating to accidents before Janu- ary 2018. The application also seeks an order that the WSIB and WSIAT assess the claims as if the prohibition did not exist. After consulting with indus- try and worker groups, the WSIB policy on chronic mental stress also tightened up the require- ments for proving a claim. The board's initial draft policy mirrored its stance on physical in- juries, by requiring that the work- place stressor, such as bullying or harassment, must have "caused or significantly contributed to the chronic mental stress" in order to meet the test for benefits. How- ever, the final policy now requires claimants to show that the work- related stressor "was the predomi- nant cause" of the mental injury. "This is a significantly higher threshold than for physical inju- ries, and in my view, the differen- tial treatment is discriminatory. It's not justified," Singleton says. In addition, workers must prove they have a properly diag- nosed mental stress injury listed in the Diagnostic and Statistical Manual of Mental Disorders, also known as the psychiatrists' bible. In a statement to Law Times, WSIB spokeswoman Christine Arnott said the "predominant" test is "consistent with other workers' compensation boards across Canada who are already covering chronic mental stress." Singleton says that puts the WSIB on a different course from the Supreme Court of Canada, which just this summer ruled expert evidence is not needed to prove a mental injury in the personal injury case of Saadati v. Moorhead. The new policy also narrows the number of routinely high- stress-level jobs that can qualify as substantial work-related stress- ors by virtue of their normal re- sponsibilities, Singleton says. "They did this consulta- tion and had a huge number of worker and employer groups give their feedback," he says. "But as far as I can see, every change to the draft policy was to make it more difficult to meet the threshold for entitlement." LT be able to take a more restrictive approach to marijuana posses- sion and use. "They can look at other mea- sures that they can implement to ensure the safety of the pub- lic and their workers," she says, noting that two recent decisions provided guidance on when drug testing and discipline for drug use are appropriate. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, an On- tario Superior Court judge de- clined the union's motion for an injunction to halt the TTC's random testing regime pending the outcome of an arbitration, after the employer demonstrat- ed the value of testing and the existence of a culture of drink- ing and drug-taking among its workforce. And in Stewart v. Elk Valley Coal Corp., the Supreme Court of Canada upheld the firing of a truck operator dismissed for co- caine use, despite his claim that he was addicted to the drug. The company's workplace policy of- fered immunity from discipline for self-disclosed dependency, but only if the admission came before an accident and positive test. "There is lots of useful infor- mation in those decisions for drafting policies and determin- ing impairment," French says. However, Jessome says mari- juana presents its own unique challenges because of the diffi- culty of testing for impairment. "There is no currently recog- nized medically recognized test for impairment, so that is going to challenge people," she says. While breathalyzers offer an accurate ref lection of the amount of alcohol in a subject's bloodstream and how it affects them, experts have yet to develop a reliable version for marijuana, thanks to the way Tetrahydro- cannabinol, its active ingredient, breaks down in the body. Some metabolites of the drug can linger in the blood long after use in amounts that vary from person to person, meaning there is little correlation between the amount detected and the level of impairment at the time of testing. The HRPA report notes that a "per se" limit on drug levels in the blood is still seen as the most likely way forward, but it expresses concern about the lack of consensus around where that threshold should be set. "The government should set a clear legal definition of 'im- pairment' and the grounds un- der which an employee can be tested in relation to cannabis use. Special considerations for safety-sensitive industries may be necessary," the report recom- mends, adding that recreational cannabis should come labelled with its THC content. Waggott says that could prove challenging, since THC content can vary wildly on a plant-by- plant basis. However, he says, the growth and professionalization of the industry could improve the situation over time. "By allowing big businesses in marketing, sales and distribu- tion are going to become much more regulated and standard- ized, which will make it easier to say: 'This quantity of the drug will lead to this expected level of impairment,'" he says. LT Continued from page 10 Belated action Deadline quickly approaches Continued from page 11 George Waggott says it could be challeng- ing for recreational cannabis to be labelled with its THC content, because it can vary on a plant-by-plant basis. 5 TH ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS COURSE HIGHLIGHTS • Developments since Bill 132 • Investigation of Serious Allegations • Privilege and Investigations • Effective Report Writing DATE & LOCATION Toronto: December 14, 2017 Vantage Venues 150 King St West, 27th Floor Toronto, ON M5H 1J9 *Discount applies to in-class only FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca Email: lexpert.questions@thomsonreuters.com Register online at www.lexpert.ca/Work-Investigations USE PROMO CODE EARLYBIRD2017 & SAVE OVER $300* EARLY BIRD ENDS NOV. 13 COURSE LEADERS: SARAH GRAVES, PARTNER, FASKEN MARTINEAU DUMOULIN LLP Toronto • Webinar | December 14, 2017 Untitled-3 1 2017-10-10 8:37 AM

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