Highlights of Noteworthy Decisions
- Stress, mental
- Procedure (Charter of Rights issue) (notice)
The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress resulting from an event at work in November 2004. The worker raised a Charter of Rights issue regarding the constitutional validity of s. 13(5) of the WSIA. The employer submitted that the worker's notice of the constitutional question was procedurally improper. Section 109(2.2) of the Courts of Justice Act provides that notice should be served as soon as the circumstances requiring it become known and, in any event, at least 15 days before the day on which the question is to be argued. Section 4.1 of the Tribunal practice direction on Procedure When Raising a Human Rights or Charter Question requires that the notice be served as soon as circumstances requiring it become known and that the party must comply with s. 109 of the Courts of Justice Act. Section 5.1 of the practice direction states that the Charter question will only be addressed after a decision has been made on the other issues in the appeal. Section 5.3 provides that the Tribunal may consider other procedural methods for dealing with a Charter question, in addition to those set out in the practice direction, when circumstances require. The worker gave notice of the constitutional question to the Attorney General of Ontario about four weeks prior to the hearing and to the Attorney General of Canada prior to, but within 15 days, of the hearing in 2016. The employer submitted that the worker could have provided notice in 2014, after release of Tribunal Decision No. 2157/09. The Panel found that the worker gave notice to the Attorney General of Ontario at least 15 days prior to the initial hearing. The notice to the Attorney General of Canada was prior to the initial hearing and well before any consideration of the Charter issue will take place. The Panel was prepared to exercise its discretion under s. 5.3 of the practice direction, and permit the worker to raise the constitutional question. The hearing will reconvene to consider the merits of the appeal. If unsuccessful, the Tribunal will then deal with the Charter issue.