On November 7, 2016, three Toronto workers’ compensation legal clinics (IWC, IAVGO, WHSLC), workers’ compensation lawyer, Gary Newhouse, and this author, formally petitioned the Ontario Ombudsman to investigate the WSIB’s systemic denial of chronic mental stress injury claims.
The grounds for this petition was the WSIB’s persistence in continuing to apply statutory prohibitions of chronic stress claims that WSIAT had found on three occasions to be discriminatory in breach of the Charter and thus constitutionally invalid. The Board continues to ignore the constitutional issue notwithstanding its own acknowledged legal obligation not to enforce constitutionally invalid statutory provisions.
The Petition included 130 pages of supporting documentation amply evidencing the problem.
Ontario’s Attorney General had participated as a party in the 2014 case in which this issue was first addressed by WSIAT and when the Tribunal decided that the chronic stress provisions were constitutionally invalid, the government had chosen not to seek judicial review of the Tribunal’s conclusion.
On January 20, 2017, the Ombudsman’s office declined to investigate on the grounds that a Deputy Minister had told the Ombudsman that her Ministry “anticipates that it will receive some government direction within the next few months on this issue”.
On February 10, 2017, the Petitioners responded to this rejection of their petition. The text of that response reads as follows:
Dear Mr. Paul Dubé, Ombudsman
Re: WSIB refusal to recognize chronic occupational stress disabilities
On November 7, 2016, we wrote to you requesting that you investigate the WSIB’s continuing refusal to address the constitutional validity of the statutory provisions prohibiting workers’ compensation benefits for workers suffering mental-health disabilities caused by chronic workplace stress. Your office’s letter of January 20, 2017, denying that request has been the subject of much concerned discussion amongst the requesting letter’s authors and the organizations they represent.
What follows is theirs and our considered response.
Our letter asked you to investigate in particular the WSIB’s refusal to respond to the Workplace Safety and Insurance Appeals Tribunal’s long-settled view that those prohibitions are in fact constitutionally invalid.
The statutory provisions in question are provisions which the Ontario Human Rights Commission is also known to believe to be discriminatory in breach of the Charter. (See the Commission’s intervention in the Appeals Tribunal’s decision 665/10 in support of the worker’s breach-of-Charter claim, and Recommendation 26 in its 2012 Minds that matter: Report on the consultation on human rights, mental health and addictions.)
The WSIB’s persistent refusal to address the constitutional validity of these discriminatory statutory provisions constitutes a deliberate and unlawful “omission” by a public sector agency that is clearly within your statutory investigative mandate as defined in section 14.(1) of your constituent statute, and it is an omission that is causing great pain and misery.
Our letter requesting your investigation closed with these words: “The absurdity of the situation and the grim consequences for workers warrant your office’s urgent attention”.
That sentence was fully justified by the evidence provided in support of the complaint. The “situation” to which it refers has persisted for nearly three years and still pertains, and the “grim consequences” have been visited on numerous mentally damaged victims during that same period of time and are being visited on a steadily increasing numbers of new victims as we speak.
In these circumstances, it is not, respectfully, a responsible response to our request for an Ombudsman investigation to say that the Ombudsman sees no present need to take steps because a “Deputy Minister” has told his office that her Ministry “anticipates that it will receive some government direction within the next few months on this issue” – to quote your office’s response to us.
If it were to address the issue effectively, any such “direction” to the Deputy Minister would have to speak to the development and enactment of new legislation, and thus, in the best of circumstances, the Deputy Minister’s advice to you must be seen to anticipate a further number of months (beyond the “next few months”), or even possibly years, before any such legislation could be expected to come to fruition.
It is doubly not a responsible response given the evidence that was before you of the clear history of this government’s persistent foot-dragging on this issue.
Workers’ advocates have heard these bland government reassurances about pending changes to this chronic stress legislation before, but nothing has come of them. Moreover, the government has steadfastly refused to respond to the Appeals Tribunal’s decisions that found the impugned statutory provisions to be constitutionally invalid notwithstanding its opportunities to test the validity of those decisions in the courts – opportunities that have arisen on three separate occasions (beginning in 2014).
Most telling in this respect is the government’s studied refusal to address the issue even when the very statutory provisions in question were actually amended by the government in the Spring of 2016 to provide presumptive entitlement for post-traumatic stress disorders for first responders. On the latter occasion, the government ignored the submissions from the OFL and other organizations that it take this obvious opportunity to address the constitutional validity issue respecting that same section of the Act; issues of which at that time the government had, of course, been fully cognizant, for more than two years.
Meanwhile, the WSIB continues to apply these presumptively invalid statutory provisions with the attendant grim – and unacceptable – consequences continuing to flow for all concerned.
It is also to be noted that because constitutionally invalid statutory provisions are in law invalid from their inception, these consequences include the steady build-up of large numbers of unlawfully denied, meritorious benefit claims for which in due course there will have to be retroactive restitution. Thus, it is a situation involving a substantial, hidden, but steadily growing debt with serious, long-term implications for the system of which, as far as we can see, the WSIB’s current financial projections and planning is taking no account.
In these circumstances, the issue for you, the Ombudsman, is not, respectfully, the government’s role or response, however much encouragement its vague promises may be seen to provide; the issue is the persistent, highly damaging refusal of the WSIB to do its duty.
We ask you to reconsider.