Canadian Occupational Safety

14 Canadian Occupational Safety www.cos-mag.com ontario WsiB strikes down mental stress restrictions Strict entitlement criteria was in violation of charter rights W orkplace bullying, harass- ment and violence remain prominent Canadian occu- pational health and safety issues. Decades of ongoing and increasing events of harassment and violence at work have given rise to signifi cantly expanded workplace safety laws, to the point that most OHS legislation and regulations across Canada now include obligations for employers to protect workers from workplace vio- lence and harassment. A recent decision by Ontario's Work- place Safety and Insurance Appeals Tribunal (WSIAT) on April 29 has now declared certain provisions under the Ontario Workplace Safety and Insur- ance Act (WSIA) related to traumatic mental stress unconstitutional. The worker in this decision was employed as a nurse with the same hospital for 28 years. During her last 12 years of employment, she was sub- jected to ongoing harassment by a doctor who worked with her. The doctor excluded the nurse from conversations in which others were included, embarrassed her in front of others, required her to communicate only through written notes and told her repeatedly to "shoo" or "get out" in the presence of patients. Concerned co-workers brought this mistreatment to the attention of the employer but no action was taken. The doctor's behaviour continued. The worker eventually brought her concerns directly to a team leader who advised her that her responsibilities would be signifi cantly reduced. The worker was effectively demoted, although her job title and classifi cation stayed the same. The worker was unable to continue working after these events and was diagnosed with an adjustment disor- der exhibiting symptoms of anxiety and depression, which was attributed to workplace stressors. The worker's claim for mental stress was denied by both the Ontario Workplace Safety and Insurance Board (WSIB) and the WSIB Appeals Branch because the worker did not have "an acute reaction to a sudden and unexpected traumatic event" as required by the WSIA and the WSIB's traumatic metal stress policy. The worker appealed the decision claiming the mental stress entitle- ment provisions of the WSIA violated her rights to equality as guaranteed by the Canadian Charter of Rights and Freedoms. In the tribunal's April decision it concluded that these provisions vio- lated the charter. It stated a mental disability is similar to a physical dis- ability where the injury can occur gradually over time, not just from a "sudden and unexpected" event. The tribunal further commented in this decision that the Alberta and Saskatchewan Workers' Compensa- tion Boards' policies regarding mental stress (unlike Ontario's) "refl ect an approach that permits fl exibility and consideration of the needs and cir- cumstances of the claimant group." For example, in Alberta, mental stress claims are granted in circum- stances where the workplace is the "predominate cause" of the condition and the events causing the stress are "excessive or unusual." In 2009, in a British Columbia appeal court, a successful charter chal- lenge was fi rst mounted to the British Columbia Workers' Compensation Board's mental stress policy. In that case, Plesner v. British Columbia Hydro and Power Authority, the B.C. Court of Appeal held the test for entitlement to workers' compensation benefi ts for mental injuries under the B.C. Work- ers' Compensation Act violated the equality guarantees in the charter. In short, the B.C. WCB policy required mental stress claimants to meet a higher threshold than claimants suf- fering physical injuries, and as a result, the court found that this distinction amounted to discrimination on the basis of mental disability. Eventually, following Plesner, B.C. Workers' Compensation policies were amended. These compensation policy changes have also been accompanied by signifi cant changes to obligations in B.C. to prevent events of harassment and bullying that could give rise to stress or traumatic mental stress. Following the April Ontario deci- sion, it is possible the Ontario WSIB may rescind or revise its current policy on traumatic mental stress to refl ect those of other provinces. It could also choose not to apply the policy or could even repeal the applicable provi- sions of the legislation. While any decision of the tribunal is binding only on the parties to the appeal, it remains to be seen how other panels of the tribunal will address this issue. Reconsideration of numerous appeals determined at board level could occur if similar charter chal- lenges are repeated in these pending cases. Workers must still establish that harassment (or other workplace stressor whether chronic or traumatic) has caused injury that is identifi able, diagnosable, disabling and arose in the course of employment. If the deci- sion is followed in subsequent cases or if changes are made to board policy in Ontario, this decision is likely to sig- nifi cantly expand the circumstances in which a worker's claim may be allowed due to mental stress. Most importantly, this decision should herald renewed commitment on the part of employers to give life to their workplace violence and harass- ment policies and commitments to psychologically safe workplaces. This can be done by ensuring an employer has the following in place: appropri- ate policies; training on commitments to harassment- and violence-free workplaces; proper investigation procedures; and programs that pre- vent the escalation of matters that could lead to chronic or traumatic mental stress. Cheryl A. Edwards is a senior partner in the OHS & Workers' Compensation Practice at Mathews, Dinsdale and Clark LLP in Toronto. A former OHS prosecutor, Edwards has been repeatedly recognized as one of the leading OHS and Workplace Safety and Insurance Board lawyers in Canada. She can be reached at (416) 777-8283 or cedwards@mathewsdinsdale.com. BY CHERYL A. EDWARDS LEGAL LANDSCAPE Formerly Centur yVallen, Vallen is Canada's most experienced provider of innovative safety, industrial, janitorial and technical ser vices and products. With 22 branches across Canada, we help companies all over the countr y work smart. Introducing Vallen: If you're looking to create a safe, healthy and productive workplace, we'll help you work smart. Safety | Industrial | Janitorial | Technical Services vallen.ca

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