This page is NEW and
still being updated. Please send any court decisions or proceedings that you are
aware of to
*** DISCLAIMER: All information on this page is provided by injured workers and not by lawyers. Therefore, nothing stated by the CIWS can be considered a legal opinion or used or construed as such.***
"The problem with
fighting to 'regain' rights is the human cost and loss to Canadians as a whole,
and moreover to the individual, and their family due to the 'break, or loss' of
the necessaries of required health and income. The acquired effect(s) on
psychological well being is commensurate." -
Darrell
Powell - Official Witness to the Senate Committee on Mental Health
LAW - COURT DECISIONS - INDEX: (and Human Rights Decisions)
NEW
BRUNSWICK PRINCE EDWARD ISLAND NEWFOUNDLAND / LABRADOR NORTHWEST
TERRITORIES YUKON NUNAVUT INTERNATIONAL
* * * IMPORTANT NOTE * * *
While an injured worker can apply for judicial review of a WCB decision, the
court CANNOT AWARD DAMAGES to the injured worker. The court can only send the
case BACK TO THE WCB for reconsideration. (This is somwhat like saying,
"Yes, the burglar robbed you, but all we can do is send you back to the
burglar to plead with him for your money back.") WCB has been known to ignore Appeal Board and court rulings and
has even appealed their own Appeal Board's decision.
Other
options for proceeding with legal action in your case include: 1. a Class
Action Suit in Supreme Court 2. an Individual Complaint in a provincial
Human Rights Commission (be careful of possible deadlines, i.e., don't wait for
a WCB decision) 3. a Representative Action Complaint in a provincial Human
Rights Commission (again, be careful of possible deadlines 4. a
Constitutional Challenge (against the law or policy itself 5. a Canadian
Charter of Rights and Freedoms Challenge (against the decision makers).
BRITISH
COLUMBIA:
2009 Important New Decision: BC COURT STRIKES DOWN WCB POLICY ON COMPENSATION FOR MENTAL STRESS FINDING IT DISCRIMINATORY UNDER THE CHARTER 2009 - "The B.C. Court of Appeal has struck
down the restrictive application and
interpretation of mental stress claims
in British Columbia. . . In short,
the Court of Appeal found that those suffering
from mental disability were treated differently
from those suffering from physical disability,
and that the differential treatment constituted
discrimination under Section 15 (of the Charter of Rights and Freedoms). . . The Court
noted that access to compensation and benefits
was significantly restricted in comparison with
workers suffering physical injuries. . . This important decision broadens the current
approach to mental stress claims under workers’
compensation legislation not just in British
Columbia, but potentially in other jurisdictions
in Canada with similar legislation.
" B.C. Court of Appeal Re-Writes WorkSafeBC Policy on Compensation for
Mental Stress also on CIWS
(CIWS NOTE: This decision does not address "workload" related chronic stress, so, although it is a step in the right direction, it does not go far enough in addressing discriminatory treatment of chronic stress diseases in the workplace by WCBs. For more information on chronic stress issues see: DISCRIMINATION - Denying Compensation For Occupational Diseases and MENTAL HEALTH / CHRONIC STRESS:)
PSYCHOLOGICAL INJURY (Human
Rights Class Action)2007NO FINAL
DECISION YET - "Canadian Union of Public Employees, Local 873
alleges that the WCB refuses a worker’s claim for work-related mental
illness unless its onset is both “sudden and unexpected”. It does not
regard certain work- related mental illnesses, such as cumulative stress or
post-traumatic stress disorder (“PTSD”) as a personal injury or
occupational disease. Local 873 alleges that its Members are expected to
encounter “traumatic and horrific” events and therefore their
psychological impairment does not satisfy the requirement that it results from
a sudden and unexpected event in the workplace."
CUPE Local 873 v BC (Minister of Labour and Citizens Services)
and WCB
PRESUMPTION / BURDEN OF
PROOF2007 - . . . the test imposed by the original panel was
patently unreasonable as it placed a burden on the petitioner . . . I conclude
that to do so was an error of law . . . jurisdictional error . . . the WCA
mandates the WCAT to resolve an issue in a manner that favours the worker where
the evidence supporting different findings on an issue is evenly weighted . . .
In my view, the appropriate disposition of this petition is to quash the 2003
WCAT Decision . . . the original panel member failed to apply the WCA as he was
mandated to do. - 2007 BCSC 862
Cianelli v. Workers' Compensation Board of B.C.
Update - Sept 2007 - B.C. Supreme Court Justice Victoria
Gray ruled that it's "patently unreasonable" for the New Interest Policy to
only provide payment of interest where there is a WCB staff error. Because the
case was certified as a class proceeding under the Class Proceeding Act, it
could affect about 20,000 people and represent about $15 to $20 million in
interest payments to injured workers. The WCB is expected to appeal.
Johnson v. Workers' Compensation Board 2007 BCSC 1410 (also
see
articles)
Update - May 2008 - WCB's appeal of the previous decision was allowed. However, it does not stop the class action from going forward. From http://www.courts.gov.bc.ca/Jdb-txt/CA/08/02/2008BCCA0232.htm - "In my opinion, the fact that this proceeding was certified as a class proceeding is irrelevant to the present appeal. . . . I would allow the appeal. However, I would not dismiss the judicial review petition because, as I have noted, the respondent has another argument to make as to whether the court can (or should) consider the legality of the new interest policy directly and without reference to the Appeal Tribunal’s decision."
WCAT* DECISIONS "PATENTLY UNREASONABLE" ON MULTIPLE
COUNTS 2007 - BC SUPREME COURT - " What is not
supported by the evidence, in fact there is no evidence, is that the worker
voluntarily withdrew from the workforce. . . .This finding is patently
unreasonable . . . The finding by the Reconsideration Panel . . . is patently
unreasonable . . . The decision to base the income on the worker’s 1999
tax year . . . is a clear violation of both the statute and the above-mentioned
policy . . . The Original Panel is bound to follow the policy of the directors.
Failure to do so in this case results in a patently unreasonable decision . . .
Relief Ordered: A. This Court declares that . . . the
decisions of . . . WCAT . . . are null and void and of no force and
effect; B. This Court grants certiorari** and quashes the aforesaid decisions and remits them
to WCAT for rehearing . . . C. This Court grants certiorari and
quashes the WCAT Original Panel’s decision confirming the pension wage
rate. . . and remits the matter to WCAT for a rehearing . . . D.
This Court grants certiorari and quashes the Original Panel’s decision
confirming the reduction in income continuity payments and the denial of the
Loss of Earnings pension . . . E. This Court grants certiorari and
quashes the Reconsideration Panel’s decision regarding the new evidence. .
. " Daniel v. British Columbia
(Workers' Compensation Appeal Tribunal) (*
"WCAT" - Workers Compensation Appeals Tribunal) (** "certiorari" - an extraordinary writ issued by a
superior court to call up the records of a particular case from an inferior
judicial body.)
ALBERTA:
PSYCHOLOGICAL HARM CAUSED BY THE WCB PROCESS IS
COMPENSABLE2005 - ". . . I find that the (WCB Appeal)
Commission’s interpretation of WCB Policy ADJ-39 was unreasonable in that
it required, in essence, that the Applicant’s psychiatric/psychological
condition must reasonably be characterized as an emotional reaction to the
accident, injury, physical disability and/or treatment process. . . .
The (WCB Appeal) Commission finds . . . that the
WCB’s involvement had a “significant impact on the Applicant’s
emotional reaction following the accident”. . . that the Applicant had a
significant and enduring “emotional reaction” that impacted his
condition as a result of the adjudication events . . . The (WCB Appeal)
Commission concluded . . . that . . . his condition “could no longer
reasonably be characterized as an emotional reaction to the
accident”. . . the (WCB Appeal)
Commission’s interpretation and application of policy is unreasonable and
results in an undue restriction contrary to the purpose of the
legislation" -
Shuchuk v. Alberta
(Workers’ Compensation Board, Appeals Commission), 2005 ABQB
526
THE WCB ACT DOES NOT CONFER IMMUNITY UPON GOVERNMENT REGULATORS
FOR BREACH OF STATUTORY DUTY BY WCBs1997 - "The "historic
trade-off", as it is called, would not be compromised by the possibility of
actions against government qua regulator . . . The (workers compensation) Board
erred in declaring that any action against the government qua regulator is
barred by the (WCB) Act . . . At common law, the
government owes a duty of care under certain circumstances and this duty may
give rise to an action for negligence. Nothing in the Act abolishes this
particular right of action". -
Pasiechnyk v. Saskatchewan (Workers’ Compensation Board),
[1997] 2 S.C.R. 890
ONTARIO:
EMPLOYEE BENEFITS PAID BY THE EMPLOYER SHOULD BE INCLUDED IN
CALCULATIONS FOR WAGE LOSS- 2007 - "What is striking in this case is the total failure by either
the WSIB or the WSIAT to take the legislative history and the government’s
explanatory purpose into account in any way. . . Having considered a
multitude of factors with respect to legislative purpose and intention, she
also should have weighed the evidence of the government’s explanatory
purpose which on its face makes it clear that the
definition of earnings would not exclude the contribution for employment
benefits at issue in this case. . . .She erred in ignoring the stated
purpose altogether, particularly since it plainly
suggests an interpretation opposite to the conclusion at which she
arrived. . . the failure to consider relevant evidence . . . renders her
decision patently unreasonable." -
Rodrigues v. Workplace Safety and Insurance Appeals Tribunal,
2007 CanLII 37018 (ON S.C.D.C.)
WCB BOARDS AND APPEALS TRIBUNALS HAVE THE JURISDICTION AND DUTY
TO APPLY THE CONSTITUTION AND CHARTER WHEN DECIDING CLAIMS2003 - "The Constitution is the supreme law of Canada . . . From this
principle of constitutional supremacy flows . . . the idea that Canadians
should be entitled to assert the rights and freedoms that the Constitution
guarantees them in the most accessible forum available, without the need for
parallel proceedings before the courts . . . Administrative tribunals which have jurisdiction, explicit or
implied, to decide questions of law arising under a legislative provision are
presumed to have concomitant jurisdiction to decide the constitutional validity
of that provision. . . . Therefore, I believe that the practical
concerns raised by the respondents concerning the Board’s capacity to
handle complex Charter cases do not require a conclusion that either the Board
or the Appeals Tribunal lacks jurisdiction to apply the Charter" -
Supreme Court
Decision - Chronic Pain - Martin and Laseur, Nova Scotia and
WSIB Appeals Tribunal Forced by Court to Finally Acknowledge
Human Rights Duties and
Tranchemontagne
v. Ontario
