IAVGO submissions on the Board’s proposed mental stress policies
The Board’s draft mental stress policy continues to discriminate against and stigmatize some of the most vulnerable injured workers in Ontario: those who suffer mental injury because of exposures and risks at work. The Supreme Court of Canada, and the Workplace Safety and Insurance Appeals Tribunal, have rejected the wrongheaded notion that mental injuries are less real, more subjective and more suspect than physical ones. This view is outdated and discriminatory. All injuries can be complex and difficult to adjudicate. All injuries can nonetheless be adjudicated using a robust fact-finding inquiry. There is no need for arbitrary and discriminatory tests that limit entitlement to workers with mental injuries.
The draft policy fails to reflect the legislature’s intention in changing the law. The legislature decided to grant workers with mental injuries equal access to the protection of workers’ compensation. The legislature removed the discriminatory exclusion of workers with mental stress injuries from the Workplace Safety and Insurance Act.
By introducing, by policy, limits on entitlement similar to those that the legislature has removed, the Board will continue to exclude workers with mental health injuries from the recovery and return to work support other workers receive. The draft policies would deny workers suffering from work-related stress their Charter right to equal protection and equal benefit of the law without discrimination.
For workers, the consequences of this exclusion are severe. Often, without support, they won’t be able to access timely health care. Often, they will be pushed into poverty when their injuries prevent them from working. Often, they will be forced to launch costly and prolonged litigation including Charter challenges to discriminatory policy.
The proposed policy creates barriers for workers seeking entitlement for mental stress – barriers not faced by other injured workers. Those seeking entitlement for chronic stress will be required to show that they were exposed to a “substantial work-related stressor,” a stressor that is “excessive in intensity or duration.” Workers seeking entitlement for traumatic mental stress will be required to prove that the stressors that caused their condition were “objectively traumatic.” Workers will also be required to provide independent confirmation of the workplace risks that caused their injuries, a requirement not barring other workers from entitlement.
Arbitrary requirements that disadvantage people who suffer psychological injuries are unacceptable.
The Supreme Court of Canada has unanimously and strongly advised that arbitrary requirements that disadvantage people who suffer mental injuries are unacceptable. The Supreme Court said that a reliance on arbitrary requirements for people with psychological injuries (in that case, the requirement for expert diagnosis of a recognized psychiatric condition) was steeped in “dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is “subjective” or otherwise easily feigned or exaggerated”. The Supreme Court stated that “no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury”.
The Board’s proposed differential treatment of workers with mental stress reinforces the stigma surrounding mental illness. Imposing a more restrictive standard for mental stress entitlement sends a message that workers claiming entitlement for these conditions are a greater risk for fraud, that their conditions are “all in their head,” or that they are frail.
The Board’s draft policies should be entirely reworked to reflect the equal rights of all injured workers to fair compensation, recovery and health care support. While it is good that the Board has adopted the “significant contributing factor” test for causation for both chronic and traumatic mental stress, this is not adequate to ensure equality because the policy imposes a number of other arbitrary limits on mental injuries.
 Saadati v. Moorhead, ibid; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur,  2 SCR 504, 2003 SCC 54 (CanLII); Decision No. 2157/09, 2014 ONWSIAT 938 (CanLII)
 Para. 35.
Our complete submissions: