In his letter to the Toronto Star in response to Sara Mojtehedzadeh’s November 14th article on the subject of the mentally ill being denied WSIB benefits – the letter that was published November 16 – the WSIB’s Chief Operating Officer effectively takes the position that because the Board “is bound by the law” it has no legal option but to continue to apply constitutionally invalid legislative provisions until the Government changes the legislation. This is not true.
In 2003, in its leading decision in Martin (Nova Scotia Compensation Board v. Martin,  2 S.C.R. 504, paragraph 28), the Supreme Court of Canada confirmed that any government tribunal or agency with the power to determine questions of law has the jurisdiction and the duty to determine the constitutional validity of any legislative provision it is empowered to apply.
This is so, the Court said, because the “invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1) of the Constitution Act …” [the section that establishes the Constitution “as the supreme law of Canada”] and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” and is to be “disregarded”. Constitutional invalidity “inheres in the legislation from the time of its enactment”, the Court held, and just as courts are obliged not to apply constitutionally invalid laws, “the same obligation applies to every level and branch of government, including the administrative organs of the state”.
The WSIB is an “administrative organ of the state” that is “endowed”, to use the Martin Court’s words, “with the power to consider questions of law” – in its case, questions of law governing an injured worker’s entitlement to benefits. In that role it has the same obligation as the Workplace Safety and Insurance Appeals Tribunal to not apply legislative provisions that are constitutionally invalid.
The Board is on notice that the constitutional validity of the legislative provisions in the WSIA that exclude workers with mental stress injuries from benefits unless the mental stress is “an acute reaction to a sudden and unexpected traumatic event” is an issue.
That notice comes in the daily submissions to it on behalf of benefit-seeking workers suffering from work-related mental health problems not caused by an acute reaction to a sudden and unexpected workplace event and most significantly in the form of three decisions of the Workplace Safety and Insurance Appeals Tribunal. These are the decisions that allowed workers’ appeals from the Board’s decisions to deny them benefits for chronic workplace stress on the grounds that the legislative provisions on which the Board relied to justify those decisions are constitutionally invalid.
The first of these Tribunal decisions followed a full hearing in which Ontario’s Attorney General participated in a vigorous defence of the validity of these provisions. The decision, published in 2014, is a unanimous decision of a tripartite panel in which both the worker and the employer panel members agreed with the panel chair that the Attorney General’s arguments were not persuasive and that the provisions are clearly in breach of the Charter.
The decision (No. 2157/09) was written by one of the most respected of the Tribunal’s adjudicators and displays a quality of analysis, legal knowledge and constitutional expertise that would do credit to the Supreme Court of Canada itself.
In my view, any constitutional law lawyer reading that decision will be persuaded of its correctness. Moreover, the government itself must be taken to have been of the same mind since it elected not to challenge the decision in the courts; a challenge that governments who lose constitutional cases routinely bring.
The Tribunal’s 2014 decision has been followed in two subsequent Tribunal cases in neither of which the Attorney General elected to contest the issue any further. See WSIAT decisions No. 1945/10 (2015) and No. 665/10 (2016).
For the Board to take the position, as its chief operating officer does in his letter, that in these circumstances the Board has no option but to continue to apply the impugned provisions until the government chooses to amend the Act is to ignore its legal obligations as defined by the Supreme Court in Martin, as well as its duties arising from its stewardship of the workers’ compensation system.
That stewardship role requires it to respect and protect not only the interests of employers but also the interests of injured workers. The Board fails in that responsibility when it continues to enforce legislative provisions which the Tribunal has found to be constitutionally invalid, thereby consigning large numbers of mentally ill workers to many years of living without benefits of which they are in desparate need and to which they are entitled, for reasons the Board knows will not withstand scrutiny on appeal.
Turning a blind eye is neither a lawful nor a respectable option.
In the WSIB’s system of adjudication, the Board’s adjudicators’ decisions are governed by the instructions given to them by the Board’s management concerning the meaning of the various provisions of the WSIA. These interpretation-based instructions are found for the most part in the Board’s published operational policies, and the instructions that are considered to be of strategic importance are, we understand, typically approved by the Board of Directors. Thus, on important matters, the Board’s adjudicative function with respect to the interpretation of the Act is ultimately exercised by the Board of Directors.
In these circumstances, the Board of Directors is not entitled to ignore Tribunal decisions that hold the impugned legislative provisions to be constitutionally invalid. In my view, the law as laid down in Martin requires the Board of Directors itself to address the constitutional question by reviewing and considering the merits of the Tribunal decisions. And if it comes to the conclusion that the Tribunal has got it wrong, to publish its reasons for that view. At that point the matter could be taken to the courts and this issue resolved in a rational and responsible manner.
On the other hand, if the Board of Directors concluded that the Tribunal’s decisions were correct, meritorious chronic stress claims would then be granted, pending any legislative amendments the government might choose to enact.