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WSIB Coverage for Chronic Mental Stress

On January 1, 2018, amendments to the Workplace Safety Insurance Act ("WSIA") came into effect to create coverage for work-related chronic mental stress.  The changes have prompted some to ask whether we will see a flood of claims for chronic mental stress.  As a lay observer on matters of WSIB coverage, I am inclined to think that these changes will not prompt a flood of claims, at least not yet.  

 

The scope of coverage for work-related chronic mental stress is defined by the WSIB's new Operational Policy for Chronic Mental Stress[1].  The policy provides that a worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by “a substantial work-related stressor” arising out of and in the course of the worker’s employment.  The policy says that the WSIB must be able to identify the particular event or events that gave rise to chronic mental stress: 

 

 

“In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress.  This means that the event(s) can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others.” 

 

Furthermore, the policy indicates that chronic mental stress brought on by “routine stress” will only succeed where the claimant’s employment exposes him or her to extreme danger or matters of life or death:   

 

 

“In some cases, therefore, consistent exposure to a high level of routine stress over time may qualify as a substantial work-related stressor.

 

Jobs with a high degree of routine stress would typically have one or both of the following characteristics:

  • responsibility over matters involving life and death, or
  • routine work in extremely dangerous circumstances.”

Reading between the lines, the policy is really geared to claims for mental stress sustained by first responders and front line emergency room staff.  No doubt we will see an increase in claims by workers in those professions.  However, the policy largely excludes claims for chronic mental stress brought on by routine stress in workers in other professions.  As such, the new policy is unlikely to trigger a flood of new claims. 

 

The real question, I think, is not whether the policy is too broad, but whether it is too narrow to withstand a Charter challenge.  Section 15 of the Canadian Charter of Rights and Freedoms prohibits legislation from discriminating upon various grounds, including mental and physical disabilities.  The Ontario Government extended WSIB coverage to include claims for chronic mental stress in response to a 2014 decision of the Workplace Safety and Insurance Tribunal which concluded that the blanket prohibition on compensation for mental stress that had existed up until that time violated the section 15 of the Charter[2]. If a blanket policy of excluding claims for work-related mental stress violates the Charter, it strikes me that a policy that excludes claims for work-related stress suffered by a worker other than a first responder or front line hospital staff may be equally difficult to defend.  The new policy may not survive a Charter challenge.  We may yet see a flood of mental health claims.   

 

Fil Mendes is a civil litigator at Madorin, Snyder.  Madorin, Snyder LLP is a full service law firm servicing Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  

    

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

 

[1]  www.wsibresources.ca/CMSPolicyPDFS/150314advanceversion.pdf

[2]  Decision No. 2157/09, 2014 ONWSIAT 938

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What is Pain and Suffering Worth?

The objective of a judge assessing damages in a personal injury case is to restore the victim to the position he or she would have been in if the accident had not happened.  For monetary losses, such as loss of income or the cost of future care, making the victim whole means awarding damages to the victim equal to the amount of the loss they have suffered or will suffer.  In theory, awarding compensation for monetary losses is relatively straightforward, although it can be difficult in practice.

 

What should the Court award a victim of a personal injury for their pain and suffering?  In Canada damages for pain and suffering are awarded on a "functional basis", meaning that the Court awards the victim of a personal injury money to provide them with reasonable "solace" for their misfortune.  Money is awarded to make up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way. 

 

Where damages are assessed by a judge, the starting point is a review of the amounts awarded to other victims with similar injuries in previous cases.  Set out below are various cases dealing with discrete injuries to particular body parts that a judge may look to for guidance:  

 

Case Injury Damage for Pain & Suffering
Leighton v. Best[i]

 

Broken jaw $35,000
Gregorowicz v. Lee[i]

 

Broken ankle $30,000

Miller v 2085337 Ontario Limited (Hampton Inn By Hilton) [iii]

 

Broken wrist $22,000

Dragatis v. McPherson[iv]

 

Dog bite $7,000

 

Although previous cases are the starting point for a judge assessing damages, the personal circumstances of the victim always need to be taken into account.  A broken wrist in one case may result in more pain and suffering than in another case.  A broken wrist in one case may not heal as well as in another case.  A broken wrist may affect one victim more than another victim.  For example, all other things being equal, a broken left wrist would have a bigger impact upon a left handed person than a right handed person.  All of these factors may lead a judge to award more or less damages to a particular victim than was awarded in a previous case involving a similar injury. 

 

One factor that is typically given little or no weight is how the injury occurred.  An award of damages relating to a broken arm should usually be the same whether the injury was the result of an assault or a slip and fall.  An important exception to that general rule is that injuries arising from a motor vehicle accident are usually subject to a deductible of about $30,000. 

   

The upper limit of damages for pain and suffering as of September 2016 is $367,000.  The upper limit was set by the Supreme Court of Canada in its 1978 decision in Andrews v. Grand & Toy Alberta Ltd.[v]  The Andrews case was decided at a time when damage awards for pain and suffering were increasing well beyond historical norms, following a similar trend in the United States.  Justice Dickson of the Supreme Court said that it was necessary to impose a cap on damages for pain and suffering:   

 

"In particular, this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest. It is also the area where there is the clearest justification for moderation."

 

In the Andrews case the Supreme Court of Canada awarded $100,000 to a plaintiff who was rendered a paraplegic in a motor vehicle accident.  With inflation, the maximum award for damages for pain and suffering is now $367,000.   

 

Fil Mendes is a civil litigator at Madorin, Snyder LLP whose practice includes personal injury claims.  Madorin, Snyder LLP is a full service law firm servicing Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  

    

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.


[i] Leighton v. Best, 2009 CanLII 25972

[ii] Gregorowicz v. Lee, 2010 BCSC 478

[iii] Miller v 2085337 Ontario Limited (Hampton Inn By Hilton) 2014 CanLII 27662 (ON SCSM)

[iv] Dragatis v. McPherson, 2006 NBQB 233 (CanLII)

[v] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229, 1978 CanLII 1 (SCC)

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Peter Madorin Reminisces About the Royal Inquiry into the Flood of 1974

On May 17, 1974, the Grand River burst its banks as one month's worth of rain fell in 24 hours.  Before the waters had even receded, people were asking who was to blame.  The Province appointed Mr. Justice Wilfred Leach to conduct a Royal Inquiry into the flood. 

 

A lot was at stake.  The losses claimed in connection with the flood were in excess of $6,700,000, which is $32,000,000 in today's dollars.  The City of Cambridge was particularly hard hit. 

 

Peter Madorin, Q.C. was at the centre of the 44 day inquiry.  "Gore Mutual insured the Grand River Conservation Authority and various  municipalities along Grand River.  I was appointed by Gore Mutual to represent the GRCA and the municipalities they insured at the inquiry."

 

According to Peter Madorin, the various reservoirs operated by the GRCA were already at full capacity before the unexpected rainfall hit.  This was to ensure that there was enough water to 'flush' the river during the summer months. "The reservoirs were at risk of overflowing.  The GRCA had no choice but to release water from the reservoirs to prevent them from overflowing.  But opening the reservoirs made the flood worse downstream."   

 

Peter Madorin says that his objective was to prevent the various municipalities along the Grand River from criticizing each other.  "The GRCA was in the crosshairs at the inquiry, but it was also an issue whether the various municipalities had made the flood worse through improper storm water management.  I tried to discourage the various municipalities from pointing the finger at one another."  

 

In his report Justice Leach made various recommendations to prevent future flooding.  However, he found no fault with the GRCA's actions leading up to the flood. 

 

Fil Mendes is a civil litigator at Madorin, Snyder LLP whose practice includes the defence of municipal liability claims.  Madorin, Snyder LLP is a full service law firm servicing Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.   

   

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

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