Highlights of Noteworthy Decisions

Decision 1945 10
J. Moore - B. Davis - A. Grande
  • Stress, mental
  • Charter of Rights (equality rights) (discrimination) (mental disability)

In Decision No. 1945/10I, the Panel found that the worker suffered a stress-related disablement injury in 2005 that arose out of and in the course of employment, but that the worker was not entitled to benefits under the WSIA because of the provisions of s. 13(4) and (5).

In this decision, the Panel considered the constitutional challenge of s. 13(4) and (5) of the WSIA.
Prior to oral argument on the constitutional challenge, the Tribunal issued Decision No. 2157/09 on the same issue. Decision No. 2157/09 declined to apply s. 13(4) and (5), and the Board policy issued under those provisions, because to do so would infringe the worker's right to equality under the Charter of Rights.
The Panel was persuaded by the reasoning and analysis of the evidence in Decision No. 2157/09, as supported by the evidence and submissions in this case and, in the absence of contrary submissions (as the Attorney General withdrew from the case and the employer made no submissions on the constitutional challenge), the Panel followed the analysis and findings of Decision No. 2157/09. In particular, the Panel found that the purpose of s. 13(4) and (5) was to exclude certain types of injuries from entitlement, that the intent was to treat a claim for chronic stress injury resulting in mental disability differently from a gradual onset physical injury and from an acute onset mental injury, that the provisions thereby created a distinction between workers who suffer a work-related mental disability and those who suffer a work-related physical disability, that the distinction creates a disadvantage by perpetuating prejudice of stereotyping because it assumes that the work-relatedness of a gradual onset mental disability cannot be reliably established, that the distinction has no ameliorative purpose and that there is no reasonable degree of correspondence between the differential treatment and the reality of individuals with mental disability.
The Panel concluded that s. 13(4) and (5) of the WSIA infringed s. 15(1) of the Charter and that the provisions were not saved by s. 1 of the Charter. It was not necessary to address specific provisions of Board policy. The Panel declined to apply s. 13(4) and (5). Having previously found that the worker would have entitlement but for those provisions, the worker had entitlement for mental stress. As also noted in Decision No. 2157/09, the Panel was not considering the portion of s. 13(5) dealing with an employer's decisions or actions relating to a worker's employment.
The appeal was allowed.