The Catholic Church closed the netherworld of limbo in 2007, but last year the Wynne government re-opened it for people who develop a mental illness as a result of their work.

Following two successful Charter challenges at the WSIAT, the government has conceded that the law which currently bars such people from making WSIB claims is unconstitutional, and yet it has failed to amend the law in any way. As a result, the WSIB and WSIAT must continue to apply the law to deny claims, unless it is challenged anew in each and every case.

But how many injured workers can afford to engage in constitutional litigation? And how can it be fair to require them to do so, when the government knows that the statutory bar is unlawful? 

The bar on “chronic mental stress” claims

Ontario’s workers’ comp system provides health and disability insurance for all injuries and illnesses that arise out of and in the course of a worker’s employment, with one exception. The law creates a special classification for workers who have a mental illness that resulted from their work, but which was not preceded by a physical injury. They are classified as workers with “mental stress” and are barred from making WSIB claims, with the exception of a sub-group whose “mental stress… is an acute reaction to a sudden and unexpected traumatic event.”[1]

In workers’ comp terms, this means that the law bars WSIB claims for “chronic mental stress.”

The WSIAT has twice ruled that it cannot apply the statutory bar to “chronic mental stress” claims because it is unconstitutional (WSIAT Decision 2157/09 and 1945/10 [2]). In both cases the WSIAT found that the law discriminated against a worker on the basis of mental disability, in violation of s. 15 of the Charter.

The government decided not to challenge those decisions in court. Given its role in the WSIAT proceedings, this was an acknowledgement that the law is unconstitutional. The government participated in both cases, vigorously defending the constitutional validity of the law. When the WSIAT ruled against the government in the first case, it pulled out of the second case in the middle of the proceedings (thereby abandoning its defence of the law in that appeal) and subsequently let it be known that it would not seek judicial review of either of the WSIAT’s rulings.

How not challenging the decisions in court casts workers into limbo

The government’s decision not to seek judicial review of the WSIAT’s decisions looked like good news at first: the WSIAT had vindicated workers’ constitutional rights, the government had thrown in the towel, and the long fight was over.

But almost two years have passed since then, and we have heard nothing from the government about amending the legislation to remove the statutory bar to chronic mental stress claims—even though it has made other amendments to the WSIA during that time, and announced more amendments to come.

By now, the government’s decision not to challenge the WSIAT decisions in court has taken a more sinister complexion—it looks like an attempt to take advantage of a peculiarity of administrative law to ensure that the unconstitutional bar to mental stress claims will continue to apply to all but the most well-resourced and determined injured workers.

When we say that the WSIAT “ruled that the law is unconstitutional,” we’re using a short-hand for something more limited in scope.

Administrative tribunals like the WSIAT do not have the power to make a “general declaration of invalidity” when it finds a law is unconstitutional—that is, to issue a decision striking down a law. Instead, their power is limited to declining to apply the law in the individual case before them. Thus the law continues to apply in general, and the next individual affected by the law has to ask the Tribunal not to apply it to their particular case too—which involves challenging the constitutional validity of the law all over again.

By contrast, courts do make declarations of invalidity. If the government applied for judicial review of the WSIAT’s decisions, the court would have to decide whether the law is constitutionally valid or not. If the government lost at the Divisional Court—the most likely result—the bar on chronic mental stress claims would be struck down for everyone.

Thus the effect—and perhaps the intention—of the government not challenging the WSIAT decision in court is to place injured workers in limbo. Even though the WSIAT has issued two decisions in which it found the bar on chronic mental stress claims is unconstitutional, in the absence of a general declaration of invalidity from the court, it remains part of the statute. The WSIB and WSIAT are thus required to continue applying it in individual cases unless the worker brings a constitutional challenge to the statutory bar as it applies in their particular case.

The practical effect: chronic mental stress claims will continue to be denied

A constitutional challenge is likely (but no means certain) to succeed, at least at the WSIAT level, given the outcome of the previous two cases. But, as the government knows well, bringing a constitutional challenge is a massive undertaking that is completely beyond the means of most injured workers: 2157/09 and 1945/10 only went ahead because the worker had the support of a trade union, which paid for the expert witnesses and experienced legal counsel required for a case of this nature.

So in practice, if the government’s goal is to prevent most mental stress claims from going ahead, then not challenging the WSIAT’s two decisions in court provides almost the same result as actually having them overturned on judicial review. Very few workers will escape the effect of the bar on chronic mental stress claims.

Conclusion and suggestion

In my view, it’s grossly unfair to require workers to mount a constitutional challenge to a law the government has conceded is unconstitutional, in order to claim vital health and disability insurance benefits.

But while we wait for our politicians to examine their consciences and see the light, I have a practical suggestion for trying to make the litigation more affordable for an individual worker.

At the outset of the appeal—that is, no later than the time you file your Confirmation of Appeal form and Notice of Constitutional Question—raise a preliminary issue about whether the WSIAT is prepared to accept the findings of fact and law in 2157/09 and 1945/10 and apply them to your case. If the WSIAT says “no,” ask the WSIAT to pay for the expert evidence required for the case, on the basis that the evidence is required for the WSIAT to make it decision on the “merits and justice” of the case (as it is required to do under s. 124(1) of the WSIA)—in the same way it pays for additional medical evidence it requires to decide a case.

This would be a novel argument, and who knows if this would work, but there’s certainly no harm in trying!

This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.

 

 

[1] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, ss. 13(4) and 13(5).

[2] Full disclosure: I was involved in 1945/10 as counsel for an intervenor, the Office of the Worker Adviser.