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28 October 2009
A successful charter challenge to the British Columbia Workers' Compensation Board's mental stress policy has resulted in a direct change to British Columbia's policy on the complex issue of determining entitlement to workers' compensation benefits for work-related mental injuries. It may also herald challenges to the manner in which all Canadian workers' compensation boards adjudicate mental stress claims.
In Plesner v British Columbia Hydro and Power Authority(1) the British Columbia Court of Appeal held that the test for workers' compensation benefits for mental injuries under the Workers' Compensation Act(2) violated the equality guarantees in section 15 of the Canadian Charter of Rights and Freedoms.(3) In particular, the court took issue with a policy which required mental stress claimants to meet a higher threshold than claimants suffering from physical injuries. The court found that this distinction amounted to discrimination.(4)
The case arose after Mr Plesner, an employee of British Columbia Hydro and Power Authority, witnessed a natural gas pipeline rupture. At the time, Plesner was 40 to 50 feet away. Initially, he heard a loud hiss but was unable to see the rupture. Plesner climbed a set of nearby stairs to obtain a better look. From the top of the stairs, Plesner could see a plume of natural gas rising into the air. Plesner was concerned that the situation was very dangerous and worried that the gas would explode, setting off a chain reaction at the plant. Plesner and other employees were evacuated to a gravel parking lot where they waited while the rupture was contained. Shortly after the incident, Plesner was diagnosed with post-traumatic stress disorder. Plesner was unable to return to work and he filed a claim for workers' compensation benefits for mental stress.
Section 5.1(1)(a) of the Workers' Compensation Act provides that workers are entitled to benefits for mental stress "only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the workers' employment".(5) The act also requires the Workers' Compensation Board and its appeals division to apply policies adopted by the board of directors.(6) Among the policies adopted is Policy Item 13.30. The policy interprets section 5.1(1)(a) of the act as creating a two-part test for establishing entitlement to workers' compensation benefits for mental stress. First, the mental stress must be an acute reaction to a sudden and unexpected traumatic event. The policy defines a 'traumatic event' as "a severely emotionally disturbing event" and provides examples to illustrate the requisite level of trauma, including a horrific accident, armed robbery, hostage taking, actual or threatened physical or sexual violence and death threats. Second, the acute reaction must arise out of and in the course of employment.
Plesner's claim for benefits was denied by the board and an internal reviewing officer. Plesner appealed. The Workers' Compensation Appeal Tribunal, the board's independent appeals body, found that while Plesner's injury was work related, it did not "fit within [the Act], when read together with [Board] Policy Item #13.30". Specifically, the appeal tribunal found that while the gas line rupture was very serious, it was not a 'traumatic event' as defined by the policy.
Plesner brought an application for judicial review. The reviewing judge allowed the application for judicial review on the basis that the reasons and findings of the appeal tribunal were inconsistent. However, the reviewing judge declined to issue a ruling on Plesner's argument that section 5.1(1)(a) of the act and Policy Item 13.30 discriminated against him on the basis of mental disability contrary to his rights under section 15 of the charter. Plesner appealed. He argued that the board's regime treated physically injured and mentally injured workers differently by limiting compensation for mentally injured workers to situations where the mental injury arose out of a sudden and traumatic event.
Applying the test developed by the Supreme Court of Canada in Law v Canada (Minister of Employment and Immigration),(7) Justice Prowse of the British Columbia Court of Appeal held that the traumatic event requirement in section 5.1(1)(a) of the act, when read together with Policy Item 13.30, violated section 15 of the charter by discriminating against claimants on the basis of mental disability. The test in Law requires the party alleging a breach of section 15 to identify an appropriate comparator group and, comparing his or her treatment to that group, to establish that:
The court identified "workers who suffered physical injuries arising out of and in the course of their employment" as the appropriate comparator group to determine whether Plesner had suffered discriminatory treatment. The court found that Plesner was subject to differential treatment because workers who suffer physical injuries must prove only that their injury is work related to receive workers' compensation, while those who suffer mental injuries must prove that their injury was work related and that it was an acute reaction to a sudden and unexpected traumatic event. The court concluded that Plesner was subjected to differential treatment based on mental disability.
Applying the four contextual factors established in Law, Prowse held that this differential treatment was substantive discrimination that demeaned Plesner's human dignity as follows. First, Prowse noted that individuals suffering from mental disability are subject to pre-existing disadvantage and stigmatization in society. Second, the reduced access to compensation did not correspond to the actual needs, capacity and circumstances of individuals with mental injuries. Third, while the impugned provisions reduced costs, these savings were not an ameliorative purpose. Finally, Policy 13.30 treated those suffering from mental injuries as less deserving of compensation than those with physical injuries. Accordingly, the court found that section 15 of the charter had been violated.
Section 5.1(1)(a) of the act and Policy 13.20 were not justifiable as a reasonable limit under section 1 of the charter. Given the circumstances, financial considerations and the problem of causation created by mental stress claims were found to be insufficiently pressing and substantial objectives. The standards of minimal impairment and proportionality were not met because the threshold required by the act and the policy would unnecessarily exclude otherwise genuine claims on the grounds that the event causing the injury was insufficiently 'traumatic'. In order to remedy the breach, the court severed the sections of Policy 13.30 which defined and described 'traumatic event'.
In light of the decision in Plesner, it is anticipated that claims for workers' compensation benefits for mental injuries will increase and that similar higher entitlement thresholds in workers' compensation legislation in Ontario, Manitoba, Newfoundland, Nova Scotia and Prince Edward Island may be challenged.
For further information on this topic please contact Cheryl A Edwards, Rhonda Shirreff or Shane Todd at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (email@example.com, firstname.lastname@example.org or email@example.com).
(1) 2009 BCCA 188.
(2) RSBC 1996, c 492.
(3) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
(4) Justice Ryan wrote a dissenting judgment. She agreed with the attorney general for British Columbia that the basis for differential treatment in the act was not physical versus mental disability, but rather the manner in which the mental injury was sustained.
(5) Workers' Compensation Act, RSBC 1996, c 492, s 5.1.(1)(a).
(6) Ibid c 492, s 250(2).
(7) Law v Canada (Minister of Employment and Immigration)  1 SCR 497.
(8) Ibid para 39.
Jackie VanDerMeulen, student at law, assisted in the preparation of this update.
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Shane D Todd