WSIA Prohibition on Mental Illness Entitlements Unconstitutional: WSIAT

July 23rd, 2014 by

Ira Marcovitch, Summer Law Student

On April 29, 2014, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) released Decision No. 2157/09, an inconspicuously named decision that is likely to have a significant impact on employers and how workplaces are managed.  In the decision, the Tribunal found that ss.13(4) and (5) of the Workplace Safety and Insurance Act, which limited entitlement to benefits as a result of mental stress in the workplace, to be unconstitutional.

The Decision involved a claim for benefits under the WSIA. The claimant had been a nurse at the same hospital for 28 years. Since at least 1990, the nurse had been the subject of ill treatment by a doctor who worked with her. According to the complaint, he would demean, berate and humiliate her in front of staff and patients. Further, the employer knew of the mistreatment, and took no remedial action. The situation culminated in mid-2002, when the claimant resigned her position as a result of being “pushed around, battered, humiliated, and discredited.”

The claimant applied for benefits under the WSIA but was denied. In doing so, the WSIB relied on ss.13(4) and (5) of the WSIA, which provide as follows:

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 unexpected 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.

In dismissing her claim, the WSIB held that the claimant was not entitled to benefits because the mental stress that she was suffering was not “an acute reaction to a sudden and unexpected traumatic event” but the sustained mental and emotional abuse of a superior. The claimant then appealed.

In a thorough and comprehensive, sixty-three page decision, the WSIAT held that the exclusion in s.13 violated the right to equality under s.15 of the Charter, and that the violation was not a reasonable limitation under s.1 of the Charter. The claimant had argued, and the WSIAT agreed, that the effect of s.13 was to draw an arbitrary and discriminatory distinction between those suffering from mental disabilities and those suffering from physical disabilities. The real effect of s.13, the decision noted, was to prohibit claims for benefits for mental disabilities in circumstances where benefits would be payable for physical disabilities. The effect of this distinction, it was argued and accepted, was to place an additional burden on those suffering from mental disabilities, an already marginalized group, with no practical benefit.

Having found a violation of s.15, the WSIAT then moved onto consideration of whether the violation could be saved as a ‘reasonable limitation’ under s.1 of the Charter. The WSIAT noted that the legislative objective of the scheme, ensuring the work-relatedness of eligible claims, was a pressing and substantial objective. However, it determined that the means chosen to achieve this objective were not proportionate to the extent of the infringement on the claimant’s rights. As such, the Tribunal found that ss.13(4) and (5) were unconstitutional, declined to apply them, and ruled in favour of the claimant.

While this decision has the potential to effect a significant change in how entitlements to benefits under the WSIA are determined, its effects are currently stunted by the principle of stare decisis, a legal doctrine that confirms that a decision of a court is binding on all lower courts, but not on judges of the same court. As it stands, Decision 2157/09 does not bind any other decision-making panel of the WSIAT, and they may reach an opposite conclusion in a different case. As well, because WSIAT members do not enjoy inherent jurisdiction (a power which allows superior courts to make and strike down laws), it could not technically ‘strike down’ ss.13(4) and (5), or declare the sections to be invalid or of no force or effect. All it was empowered to do was to decline to apply the statutory sections in the case before it. However, should the decision be appealed to a court, and the court affirms the Tribunal’s decision, then it may ‘strike down’ ss.13(4) and (5).

While the effect of Decision 2157/09 is limited in application at the moment, employers should not be quick to ignore the decision. In any case where a claim to benefits arising from mental stress in the workplace is possible, employers should take care to accurately and appropriately document the grievance. For more information on how this decision could affect your rights or obligations, please contact one of our skilled employment law lawyers.

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