In previous posts, I’ve talked about the ongoing suffering caused by the government’s failure to respond to several WSIAT decisions stating that the exclusion of chronic mental stress from workers’ compensation in Ontario is unconstitutional. I’ve also speculated about the government’s motives for neither seeking judicial review of the decisions nor amending the legislation to fix the problem.
I decided that, rather than speculating, it would be fairer to the government and more helpful for injured workers if I simply asked Kevin Flynn, the Minister of Labour, about the issue.
In this post I provide readers a copy of our correspondence, and my commentary on it.
A brief recap of the problem
I won’t go into the details of the problem again: it’s set out in detail in my December post, In Limbo. But here’s a brief summary:
- Ontario has a workers’ compensation system that provides health and disability insurance benefits for work-related injuries and illnesses.
- The law excludes workers from benefits if they suffer from work-related “chronic mental stress” (a legal term used to classify mental illnesses that result from work, but which were not preceded by either a physical injury or a “sudden and unexpected traumatic event”).
- The WSIAT has now on three occasions ruled that the exclusion of chronic mental stress claims is unconstitutional (WSIAT Decision 2157/09; 1945/10; and 665/10). In all three cases, the WSIAT found that the sections of the law excluding chronic mental stress claims (namely s. 13(4) and 13(5) of the Workplace Safety and Insurance Act) 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, by way of an application for judicial review.
- Because of a combination of the WSIAT’s limited remedial powers (it cannot strike the law down, but can only decline to apply it to the case before them) and the government’s decision not to challenge the WSIAT’s decisions in court, the bar on chronic mental stress claims remains in place.
- This is a huge problem because the WSIB and the WSIAT must continue to apply the law to deny claims unless it is challenged anew in each and every case, but few injured workers have the means to engage in constitutional litigation.
My letter to Minister Flynn
- Does the Ontario government accept that ss. 13(4) and (5) of the WSIA are unconstitutional?
- Does the government intend to amend the WSIA to remove the statutory bar on chronic mental stress claims?
- If so, when does the government anticipate passing legislation to that effect?
- In the interim, what relief will the government provide to workers who wish to make WSIB claims for chronic mental stress?
Minister Flynn’s response
Minister Flynn responded to my letter in an email, which you can read here. After several polite paragraphs restating a selection of the facts set out in my letter, he provides a single sentence that responds to my questions. He says:
To appreciate just how non-responsive this response is, you have to consider how much time has passed between the first WSIAT decision and his email: more than two years (Decision no. 2157/09 was issued on April 29, 2014; the email is dated May 19, 2016). More than enough time, if the government was serious about amending the legislation, at least to have devised a plan for consultations, or a time frame in which these “next steps” might occur—or to have formed even one concrete idea about what the government will do next that could be shared with the public.
As polite and anodyne as the Minister’s email seems on its face, the absence of even a crumb of specificity about the government’s plans after two years looks to me like a contemptuous brush-off, of both the issue of chronic mental stress and the injured workers who suffer from it. I read the email as exercise of political alchemy, in which the Minister takes a golden opportunity to inform injured workers about what’s really going on, and turns it into the base metal of meaningless bureaucratic bullshit.
I guess the constitutional litigation will continue, indefinitely, for those workers who can afford it. What would the Minister say to those who can’t? Perhaps that they too should “continue to consider options on next steps,” like how to make ends meet on ODSP.