Ontario’s WSIB and the power implants – CMS Benefits Policy – A Case in Point – Wrong Standard of Proof





On May 4, 2017, the Ontario WSIB published a draft Operational Policy concerning entitlement to “Traumatic or Chronic Mental Stress Benefits” respecting “accidents on or after January 1, 2018”.  (Draft for Consultation Purposes, Document Number 15-03-14.)

The CMS (Chronic Mental Stress) Benefits portion of this draft policy anticipated the enactment of Bill 127, Schedule 33, which established a new entitlement to CMS Benefits and gave the Board a set of four new statutory powers to establish policies concerning: (1) the interpretation and application of the WSIA, (2) evidentiary requirements, (3) adjudicative principles, and (4) the application of differentiated evidentiary requirements and adjudicative principles for different types of entitlement.

I have written four posts expressing my doubts as to whether any of these new policy-setting powers give the Board any substantive law-making powers and these may be referenced through the links set out below.

In its various aspects, the May 4th draft Board policy respecting the new CMS benefits may be seen to involve the Board’s exercise of each of these four, new policy-establishing powers.

The Proposed Standard of Proof

The particular focus of this post is the draft CMS policy concerning the standard of proof to be applied in adjudicating CMS benefit claims.   That policy appears on page 4 of the policy document under the label “Standard of proof and causation” and reads as follows:

 In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor, including workplace bullying or harassment, caused or significantly contributed to the chronic mental stress.” (Emphasis added.)

The Proposed Standard is not Authorized by the WSIA

Why do I say that the balance-of-probabilities standard of proof is not authorized by the WSIA? Is it not the standard of proof universally applicable in civil law processes?

Of course, it is true that the balance of probabilities is the universal standard, but the Supreme Court has recently reminded us that, in workers’ compensation systems containing the tie-goes-to-the-worker statutory provisions  (of which Ontario’s system is one – see WSIA, section 119(2) ), the applicable standard of proof is not the balance of probabilities.

(See my earlier post on the same point  – part II on the power implants published May 24, 2017.)

Paragraph 7 of the Supreme Court’s judgment in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (CanLII), reads as follows:

[7]   Section 250(4) of the [BC Workers’ Compensation] Act provides that, where the Tribunal is hearing an appeal respecting the compensation of a worker and the evidence is “evenly weighted” on an issue, the Tribunal must resolve that issue “in a manner that favours the worker”.

In other words, the applicable burden of proof is not the civil burden of “balance of probabilities”. Where the evidence leads to a draw, the finding must favour the worker. This extends to deciding … the issue of causation …  (Emphasis added.)

Thus, the question the WSIA requires the Board’s adjudicators to ask is not, as the Board’s draft policy effectively proposes, “is it more likely than not” that the work-related stressor caused the CMS injury?

The question the Act requires the Board’s adjudicators to ask is this: “is it as likely as not” that the stressor caused the injury?

“As likely as not” versus “more likely than not” – a dramatic difference.

Might the Policy Override the Act?

Thus, on the standard-of-proof issue this draft policy presents a concrete instance of the question of whether the Board’s new policy-making powers empowers it to amend the law.

One can’t be sure whether the standard of proof policy thus specified is to be regarded as a policy concerning the “interpretation and application” of the Act, or an “evidentiary requirement” or an “adjudicative principle”, or an instance of a policy establishing differentiated evidentiary requirements or adjudicative principles for CMS benefits as compared to other benefits.

And, in fact, in establishing a policy that requires the causal connection between workplace stressors and a CMS injury to be determined on a balance of probabilities it is possible that the Board will be seen to be exercising all four of its new policy-making powers.

As the reader will have seen in my earlier posts on these four new power “implants”, I do not myself see how the new policy-making powers can be seen to authorize the Board to change the law – the law that is established by the WSIA and determined through the application of the associated common law principles of statutory interpretation, procedural fairness, proper purpose, etc.

How the Issue will be Resolved

It follows, in my view, that if the policy respecting entitlement to CMS benefits adopted by the Board in final form continues to instruct its adjudicators that the applicable standard of proof on the CMS causation issue is the balance of probabilities, decisions made on the causation issue while that standard of proof policy is in place will be reviewable as unreasonable because obviously wrong in law.

Appeals to the Appeals Tribunal of Board decisions denying entitlement for CMS benefits on the basis of a Board decision that it cannot be satisfied that the workplace stressors were  the cause of the injury will present the Tribunal with a clear issue as to whether the Board’s standard of proof policy respecting CMS benefits is, in the terms of section 126(4), “inconsistent with or not authorized by the Act”.

These appeals will then be an occasion for the Tribunal to make a section 126(4) referral of its decision that the standard of proof policy is inconsistent with or not authorized by the Act to the Board for its review and direction, and, in due course, for one of the parties to seek judicial review of the Board’s direction.

Meanwhile, the WSIB Board of Directors might be asked whether it is in fact their intention to apply an unlawful standard of proof to the determination of CMS benefits.



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