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Workers’ Compensation Board’s Mental Stress Compensation Policy Unconstitutional

Written by
Mathews Dinsdale, Canada’s only national labour and employment law firm.
An overview of Canadian case law on workers' compensation in relation to mental stress

In its recent decision in Plesner v. British Columbia Hydro and Power Authority, the B.C. Court of Appeal found that the test for employees claiming workers’ compensation benefits for mental injuries under the B.C. Workers Compensation Act (the “Act”) violated s.15 of the Canadian Charter of Rights and Freedoms. In particular, the Court took issue with a B.C. Workers’ Compensation Board Policy which required mental stress claims to meet a higher threshold of acuteness and trauma.

Board Policy 13.30 created a two-part test for establishing mental stress.  First, the stress had to be an acute reaction to a sudden and unexpected traumatic event.  Second, the acute reaction had to arise out of and in the course of employment. Mr. Plesner, an employee suffering from post-traumatic stress disorder after witnessing a  rupture of a natural gas pipeline at work, was denied benefits as the pipeline rupture he witnessed was not sufficiently acute or traumatic.

The B.C. Court of Appeal found that Policy 13.30, when read together with the Act, violated the guarantees of equality under section 15 of the Charter by subjecting workers suffering mental injuries to differential treatment than workers suffering physical injuries. The Court held that this differential treatment was not justified as a reasonable limit under the Charter. It concluded that financial considerations and the problem of causation created by mental stress claims were insufficiently pressing and substantial objectives and the standards of minimal impairment and proportionality were not met because the threshold would exclude otherwise genuine claims on the ground that the event was insufficiently “traumatic”. As a result, the Court severed the sections of Policy 13.30 which define and describe “traumatic event”, declaring them to be of no force and effect.

Due to the similarities in workers’ compensation legislation across Canada, it is anticipated that similar arguments will be made in other jurisdictions in the near future.