Highlights of Noteworthy Decisions

Decision 119 16 I2
T. Mitchinson - E. Tracey - C. Salama
  • Charter of Rights
  • Stress, mental
  • Teaching
  • Procedure (Charter of Rights issue)

The worker was an educational assistant in a special education class for developmentally-delayed students. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress.

In Decision No. 119/16I, the Panel concluded that the worker experienced events that were objectively traumatic but that they were not unexpected and that she did not suffer an acute reaction to those events. The worker did not have entitlement for traumatic mental stress under the WSIA.
The worker had given notice of a constitutional question regarding s. 13(4) and (5) of the WSIA. The hearing of the appeal was adjourned, with the next step to be consideration of whether the worker would have had entitlement for mental stress under the pre-1997 Act.
In this decision, the Panel found that the worker would have had entitlement under the pre-1997 Act. The Panel applied the average worker test and found that the average worker faced with the circumstances present in the classroom, and the relentless behavioural challenges presented by the particular student, compounded by the ineffectiveness of established coping strategies, would have been at risk of suffering a disabling mental reaction. The Panel concluded that the events experienced by the worker made a significant contribution to the development of her mental stress condition, and met the requirements for entitlement under s. 4(1) of the pre-1997 Act.
The hearing was adjourned. The worker is entitled to pursue the constitutional challenge pursuant to the Charter of Rights and the Ontario Human Rights Code.