Mental Stress and the Charter of Rights and Freedoms: WSIAT Decision No. 2157/09. Schedule 2 Employers Group 2014 Annual Conference October 7, 2014

Transcription

1 Mental Stress and the Charter of Rights and Freedoms: WSIAT Decision No. 2157/09 Schedule 2 Employers Group 2014 Annual Conference October 7, 2014 Rob Boswell rboswell@ccpartners.ca

2 Workplace Safety and Insurance Act, 1997 Accident arising out of and in the course of employment. Wilful and intentional act (not of the worker) Chance Event occasioned by physical or natural cause Disablement arising out and in the course of employment

3 Workplace Safety and Insurance Act, 1997 Mental Stress 13. (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer s decisions or actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

4 Operational Policy : Traumatic Mental Stress In order to consider entitlement for traumatic mental stress, a decisionmaker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker s family member, or others.

5 Operational Policy : Traumatic Mental Stress In all cases, the event must arise out of and occur in the course of the employment, and be clearly and precisely identifiable objectively traumatic, and unexpected in the normal or daily course of the worker s employment or work environment.

6 Operational Policy : Traumatic Mental Stress Sudden and unexpected traumatic events include witnessing a fatality or a horrific accident witnessing or being the object of an armed robbery witnessing or being the object of a hostage-taking being the object of physical violence being the object of death threats being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon) being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse) being the object of harassment that includes being placed in a life-threatening or potentially lifethreatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous). The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e.g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring).

7 Operational Policy : Traumatic Mental Stress Acute reaction significant or severe reaction to the work-related traumatic event that results in a psychiatric/psychological response. Axis I Diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In the case of a delayed onset (more than four weeks after the traumatic event), the evidence must be clear and convincing that the onset is due to a sudden and unexpected traumatic event, which arose out of and in the course of the employment. Workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.

8 Operational Policy : Traumatic Mental Stress Cumulative effect Due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple, sudden and unexpected traumatic events resulting from criminal acts, harassment, or horrific accidents. If a worker has an acute reaction to the most recent unexpected traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of sudden and traumatic events is considered to be the cumulative effect.

9 Operational Policy : Traumatic Mental Stress An employer's work-related decisions or actions There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function, such as terminations demotions transfers discipline changes in working hours, and changes in productivity expectations. However, workers are entitled to benefits for traumatic mental stress due to an employer's actions or decisions that are not part of the employment function, such as violence or threats of violence.

10 Charter of Rights and Freedoms Guarantee of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

11 Charter of Rights and Freedoms EQUALITY RIGHTS Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

12 Charter of Rights and Freedoms Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

13 Comparable provincial legislation and policy British Columbia Workers Compensation Act 5.1 (1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder (a) either (i) is a reaction to one or more traumatic events arising out of and in the course of the worker's employment, or (ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment, (b) is diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and (c) is not caused by a decision of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment.

14 Comparable provincial legislation and policy Alberta WCB Policies and Information Manual Compensable when it is an emotional reaction in response to a single traumatic work-related incident or a cumulative series of traumatic workrelated incidents experienced by the worker. A traumatic incident(s) is defined as a direct personal experience of an event or directly witnessing an event that, reasonably and objectively assessed, is: sudden, frightening or shocking, having a specific time and place, and involving actual or threatened death or serious injury to oneself or others or threat to one s physical integrity.

15 Comparable provincial legislation and policy Alberta, continued Chronic stress Chronic (non-traumatic) stress claims are compensable when all of these criteria are met: there is a confirmed psychological or psychiatric diagnosis as described in the DSM, the work-related events or stressors are the predominant cause of the injury, the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and there is objective confirmation of the events. In addition to the duties reasonably expected by the nature of the worker s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time.

16 Dichotomy of the WSIAT Case Law Decision 669/02 (Vice Chair Bigras; Members Seguin, Besner) Pre-1998 claim, but raised in the context of a Board policy that specifically addressed pre-wsia claims for mental stress. The limits to entitlement set out in that transitional policy were comparable to the current policy. Worker was an RN in a hospital. Alleged a pattern of harassing behaviour without elements of violence or threats of violence. Includes in the policy did not exclude instances of over-scrutiny and antagonistic behaviour of coworkers and manager. Claim was allowed for mental stress.

17 Dichotomy of the WSIAT Case Law Decision 2056/03 (Vice Chair Nairn; Members Robb, Timms) Incidents arose in The worker was a health care aide. The allegations were of overzealous scrutiny of the worker, amounting to harassment. There was no violence or threats of violence. Approach in 669/02 was followed and worker was granted benefits for mental stress.

18 Dichotomy of the WSIAT Case Law Decision No. 353/07 (Vice Chair Kalvin) Right to sue application by McDonalds against a former, unrepresented employee. Plaintiff employee alleged a pattern of harassing behaviour, including some direction to work unsafely. Vice Chair Kalvin ruled that the mental distress claim of the plaintiff was barred by the Act. Although the policy of the Board appeared to limit entitlement to mental stress to instances of violence or serious trauma, the list in the policy is not exhaustive.

19 Dichotomy of the WSIAT Case Law Decision No. 620/08 (Vice Chair Crystal; Members Tracey, Ferrari) The worker was a courier. He alleged (supported by 16 co-workers) that his manager was harassing him, and was overzealous in his scrutiny of the worker. Vice Chair Crystal noted that the list in the policy is not exhaustive, but that this does not mean that it leads to an open-ended interpretation. The list is instructive of the types of incidents that are to be considered traumatic. Circumstances must be very serious and a threat to personal security must be implicit, if not explicit. Appeal was denied.

20 Dichotomy of the WSIAT Case Law Decision No. 1239/11 (Vice Chair Crystal; Members Sahay, Crocker) The same approach was followed as in 620/08. On several occasions a manager reprimanded the worker in a loud and aggressive manner in front of co-workers. There were other allegations of similar types of harassment. The was no threat to personal security, and the behaviour of the manager was not so egregious as to merit entitlement to benefits.

21 Decision 2157/09I The ruling on the merits Decision No 2157/09I (Vice Chair McCutcheon; Members Wheeler, Ferrari) Hospital nurse working in two clinics suffered from a history of regular demeaning and harassing behaviour at the hands of a physician. Evidence of the worker was well corroborated by other evidence. There was no history of violence or threats to personal security. Instances that arose after the worker left employment were not covered by the Act, and were addressed in a grievance process. The type of harassment would have been considered stressful by an average worker, but did not meet the test set out in the Act or Board policy. Hearing adjourned to allow worker to bring a Charter application.

22 Decisions 483/11 and 1882/12 Decision No 483/11 (Vice Chair Moore; Members Young, Hoskin) Educational assistant of a school board suffered allegations of misconduct with a student that, ultimately, were not proven through a disciplinary hearing. There was no threat of violence or threat to personal security. A review of the consistency of the policy with the Act was sent back to the Board, and Board counsel indicated that the list of examples in the Act were not exhaustive. The approach in 620/08 and 1239/11 was rejected and the claim was allowed. (See also the interim decision 483/11I) Decision No 1882/12 (Vice Chair Nairn; Members Trudeau, Biggs) The approach in 483/11 was adopted.

23 Decision 2157/09 The Charter application Issue was whether s. 13(4) and (5) of the WSIA or Board policy infringes section 15 of the Charter, and if so, whether it is saved by section 1 of the Charter. Consideration of whether s. 13(4) and (5) creates a distinction based upon an enumerated or analogous ground of protection under the Charter, and whether the distinction is substantively discriminatory in that it perpetuates disadvantage or stereotyping. Found that s. 15 infringed by both s. 13(4) and (5) and Policy, and not saved by s. 1. Remedy was to decline to apply s. 13(4) and (5) and to decline to apply the Policy, appeal was allowed. Note that the Charter application did not address the decisions in employment component of s. 13(5). Harassment as Trauma or Chronic Stress

24 Decisions 1159/12I and 1526/13I Decision No 1159/12I (Vice Chair Martel, Member Satay Dissenting Member Grande) Dissenting decision of Member Grande. Sexual assault allegations not proven and claim denied. Worker engaged in sexually inappropriate humour in the workplace. Credibility was in issue. Worker member on the panel issued a dissenting decision. Charter application not pursued by worker (see Dec No 1159/12) Decision No 1526/13I (Vice Chair Nairn; Members Davis, Cocker) Allegations of worker were not proven, but Panel was prepared to accept that instances of repeated ridicule and harassment of a worker could give rise to entitlement for mental stress. Charter application was not pursued by the worker (see Dec No 1526/13)

25 Decision 2157/09 and the WSIB Policy No change in policy while the language of the Act remains the same. Decision making at the Board, in accordance with the policy should not change. Appeals Policy and legislation will be applied, as before. The WSIB appeals practice and procedure allows for human rights and Charter issues to be raised. It is yet to be seen what would happen in such a case, and it is more likely that a Charter application would be brought at the WSIAT level.

26 Notable cases elsewhere Boucher v Wal-Mart (Ontario Superior Court jury trial, and Ontario Court of Appeal) Ashraf v SNC Lavalin (Alberta Queens Bench) 2013 See also the appeal decision

27 About the speaker Rob Boswell is is Counsel to Crawford Chondon & Partners, providing support to the firm s clients primarily on Workplace Safety and Insurance matters. He is also a sole practitioner maintaining his office in Barrie, Ontario. Rob has appeared as counsel for employers in more than 1000 appeal hearings before the WSIB and WSIAT. He has advised employers on related matters in grievance arbitrations, human rights proceedings, occupational health and safety proceedings, and disability litigation. Rob also acts as prosecuting counsel on compliance matters for the WSIB. Rob has twice served as the chair of the Ontario Bar Association s workers compensation section. In 2011, he became the 13th person to receive the section s Ron Ellis Award recognizing leadership and excellence in workers compensation law in Ontario. For several years, Rob has been identified by his peers in Best Lawyers in Canada in the practice area of Workers Compensation Law. Rob brings a practical approach to addressing workplace safety and insurance issues. He is a regular speaker at the Schedule 2 Employers Group annual conferences.

28 Mental Stress and the Charter of Rights and Freedoms: WSIAT Decision No. 2157/09 Schedule 2 Employers Group 2014 Annual Conference October 7, 2014