Administrative justice in workers’ compensation – Post # 5 – Charter Denial

Another in the Ontario workers’ compensation series.  

For the introduction to the series, see Post #1  referenced below.

PREFACE

In Post #1 of this series, I addressed the problems presented by the Tribunal-Denial policy of the WSIB (Ontario Workplace Safety and Insurance Board) in which decisions of the Workplace Safety and Insurance Appeals Tribunal that find the Board’s interpretations of the Act or its policies to be incorrect are routinely ignored.

In Post #3 – the thin skull hijacking post – I recorded how the Board ignored the Appeals Tribunal’s decisions on the application of the thin skull rule in the assessment of permanent impairment benefits.

In this Post #5, I address the Board’s similar “denial” of Tribunal decisions, this time of those that find provisions of the Act to be constitutionally invalid.

THE LEGISLATION IN ISSUE

Since 1998, the Ontario Workplace Safety and Insurance Act has ruled out workers’ compensation benefits for mental disorders arising out of or in the course of employment unless they are caused by acute reactions to workplace events that are “sudden, unexpected, and traumatic”.

The pertinent provisions, introduced for the first time in the 1997 Act, are to be found in sections 13(4) and 13(5).

THE APPEALS TRIBUNAL’S CHARTER DECISIONS

Seventeen months ago, the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) decided that these statutory restrictions against entitlement to benefits for mental stress , and the related Board policy, infringed a worker’s right to equality as guaranteed by section 15(1) of the Charter and could not be justified under section 1 of the Charter.

The case involved a hospital nurse whose mental disorder (fully supported by the medical evidence) was proven by the medical evidence to have been clearly caused by her harassment by a doctor – also an employee of the hospital; an egregious harassment that continued over a prolonged period of time.

The decision, a unanimous decision of a tripartite Tribunal panel, is WSIAT Decision No. 2157/09, dated April 29, 2014.

THE ATTORNEY GENERAL’S PARTICIPATION

The issue came before the WSIAT hearing panel because the worker, represented by experienced counsel, challenged the constitutional validity of the restrictions, and served the Ontario Attorney General with the required Notice of Constitutional Question.  The AG participated fully in the appeal, opposing the challenge with substantive submissions.

OTHER SUBMISSIONS

The Tribunal hearing panel also had the benefit of full submissions from the worker’s counsel and, as well, submissions from the Tribunal’s own counsel.  The worker’s employer did not participate in the appeal. All submissions respecting the Charter issue will be found fully described in the decision.

THE QUALITIES OF THE DECISION

The decision, which runs to 78 pages, contains a fully reasoned, highly expert, sophisticated and exhaustive analysis of all the pertinent law and of the substantial medical evidence.  Its principal author – the Vice-Chair who chaired the unanimous hearing panel – is one of the Tribunal’s most respected and senior adjudicators.  And her Panel colleagues who joined in the decisions  – the member representative of employers, and the member representative of workers – are both senior members.

In the quality of its expertise and in the competence and thoroughness of its analysis, Decision No. 2157/09 presents a set of reasons that would do credit to the Supreme Court of Canada itself.

THE DECISION

The Tribunal’s understanding of the nature of the Charter issue and a concise summary of its decision appear in the following paragraphs of the decision.

[12]   The Charter challenge in this proceeding pertains to the provision of subsection 13(5) which limits entitlement to mental stress that is “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.”  Subsection 13(5) also excludes entitlement for a worker’s mental stress “caused by his or her employer’s decisions or actions,” but that provision of the subsection is not before the Tribunal in this appeal.  Where this decision refers to the impugned statutory provisions, or subsections 13(4) and (5) of the WSIA, it does not refer to the exclusion of entitlement for mental stress caused by an employer’s decisions or actions contained in subsection 13(5) of the WSIA.

[13]   For the reasons set out in this decision, the Panel finds that the impugned statutory provisions and related policy [Board Policy No. 15-03-02 – Traumatic Mental Stress]  create a distinction based upon the ground of mental disability that is substantively 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 under section 1 of the Charter.  The remedy is that the Panel will not apply the impugned statutory provisions and the TMS policy to this appeal.  Accordingly, the worker’s appeal is allowed.

THE STATUS OF THE DECISION AS WE SPEAK

The decision stands unchallenged.  The Attorney General elected not to apply for judicial review, and, as noted, the employer was not a party to the appeal, and, of course, as is the established practice, the Board did not participate in the appeal.

The reasoning in the decision has also been accepted as correct in a subsequent decision of the Tribunal – Decision No. 1945/10, dated January 27, 2015.  And it may be noted that while in the latter case a Notice of a Constitutional Question was also served on the AG, in that case the AG elected not to intervene.

THE BOARD’S REACTION

But, as with other Tribunal decisions, the WSIB has  simply ignored these Tribunal decisions and continues to apply its pre-existing Traumatic Mental Stress Policy in which, as required by sections 13(4) and 13(5), entitlement is confined to mental disorders caused by workplace events that are sudden, unexpected, and traumatic.

The Board publishes some of the decisions of its Appeals Resolution Officers in CanLII. In ARO Decision No. 20150087, dated February 15, 2015 (about a month following the latest WSIAT decision on the Charter issue) the Board’s failure to acknowledge the Tribunal’s Charter jurisprudence will be found on full display.

The latter decision involved a worker seeking entitlement for a mental disorder caused by a series of egregious harassing events in her workplace.  The appeal from the Case Manager’s denial of her claim is dismissed on the basis that the precipitating events, while unexpected, could not be said to be sudden or traumatic in the sense required by the Board’s Traumatic Mental Stress Policy – No. 15-03-02.  (This is the policy, dated October 12, 2014, referred to in WSIAT No. 2157/09 as unconstitutional.)

The ARO decision makes no reference – zero reference – to the Tribunal’s  carefully considered decisions that in cases of this nature the restrictions in the Board’s policy are inconsistent with the Constitution of Canada, and thus of no force or effect.

RULE OF LAW IN DISARRAY AGAIN

So here we are, confronting another instance of the rule of law in disarray in Ontario’s workers’ compensation system.

We know – the Board knows – that any worker suffering from a mental disorder that the medical evidence proves was caused by harassment in a workplace will be refused benefit entitlement by the Board’s adjudicators notwithstanding that the Appeals Tribunal has ruled (and the Attorney General may be thought to have tacitly agreed) that such a refusal is constitutionally invalid.

Workers suffering from mental disorders caused by workplace harassment who can find sophisticated representation and who have the financial and emotional wherewithal to initiate and sustain an appeal to the Tribunal based on a constitutional challenge may expect to be ultimately awarded their benefits.  But even they will be forced to live for two or three years without those benefits, with all the consequences which that entails for a person suffering from a mental disorder.

Injured workers without representation (as in the above-mentioned ARO case), or who are unable to assume or sustain the burden of a constitutional challenge at the Appeals Tribunal, will be permanently deprived of the the benefits to which everyone knows they are in fact entitled.

QUESTION

Is there nothing to be done?  Can the Board operate without the law indefinitely?

Why does it choose to do so?

RE

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