The Human Rights Tribunal recently convened a rare three-member panel to consider the issue of whether the Human Rights Tribunal has jurisdiction to decide if the WSIB’s traumatic mental stress (“TMS”) policy and the related provisions of the Workplace Safety and Insurance Act (“WSIA”) constitute a breach of the Human Rights Code in the provision of services.
The WSIB has implemented a policy whereby it will only allow TMS claims where there is some element of violence involved in the worker’s development of a psychiatric injury. For example, the WSIB would potentially allow a TMS claim where a worker witnessed the violent injury of a co-worker, but would not allow a claim where a worker was subjected to sustained verbal abuse over a period of time.
The WSIB draws support for its policy from the wording of the WSIA, which provides in s. 13(5) that traumatic mental stress benefits are only to be awarded in the case of “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.”
In practice, the wording of the WSIA and the WSIB’s internal policy have been interpreted to routinely deny mental stress claims where the mental stress arose as the result of a long period of harassment or stress. Workers who have developed post-traumatic stress disorder or other serious psychological injuries as a result of a sustained level of harassment over a prolonged period are not eligible for WSIB benefits under the current policy. Workers who have gradually developed serious psychological injuries as the result of overzealous supervisory scrutiny have similarly been denied benefits on a routine basis.
In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (CanLII), a three-member panel of the Human Rights Tribunal considered whether it could hear an application brought by Mr. Seberras. Mr. Seberras is a worker who alleges that he developed a gradual-onset psychological injury at work. The WSIB denied his claim pursuant to the TMS policy.
The Human Rights Tribunal considered several arguments for and against its jurisdiction to decide the matter. What ultimately tipped the balance in favour of confirming jurisdiction to hear the challenge is that the applicant was not challenging the specific decision made in his own case. That decision would be subject to judicial immunity and would only be properly challenged by an appeal to the Workplace Safety and Insurance Appeals Tribunal. The Human Rights Tribunal was clear in stating that it was not prepared to hear appeals or collateral attacks on specific claims benefit decisions made by the WSIB.
Instead, Mr. Seberras’ application is framed as a challenge to the overall statutory scheme that the WSIB has implemented for dealing with TMS claims. His case is essentially alleging that the scheme itself is discriminatory in that it places an arbitrary restriction on psychological injuries which does not exist for physical injuries. In other words, the WSIB treats psychological injuries differently from physical injuries, and this differential treatment is discriminatory against people with psychological injuries.
In allowing this challenge to proceed, the Human Rights Tribunal has ruled that the provision of statutory benefits such as WSIB benefits constitutes a “service” within the meaning of the Human Rights Code. This is qualified by the caveat that statutory benefits are only a “service” on a systemic level. Individual rulings to allow or deny such benefits are “decisions,” not “services,” and cannot be reviewed by the Human Rights Tribunal.
We will be monitoring this matter as it progresses and providing further updates in this blog. This proceeding may have a significant impact on the availability of WSIB benefits for victims of workplace harassment.