Human Rights

WCB Threshold for Coverage of Mental Injuries Breaches Charter

On April 30, 2009, the BC Court of Appeal ruled that certain provisions of the Workers’ Compensation Act and WorkSafeBC policy offend the Canadian Charter of Rights and Freedoms because they discriminate against workers on the basis of mental disability.

In September 2004, the appellant worker claimed compensation under the Act for a workplace mental injury. His claim was refused and the matter proceeded through a number of appeals before being reviewed by the BC Court of Appeal. The issue before the Court was whether certain provisions of the Act and the Policy Manual applied by WorksafeBC were contrary to the guarantee of equality under Section 15 of the Charter.

The appellant argued that the provisions unlawfully distinguished between mental and physical work-related injuries. Physical injury is compensated if found to arise out of and in the course of employment, while a work related, purely mental injury is not compensated unless it is found to be an acute reaction to a sudden and unexpected traumatic event.

The Court found that the requirement of a “sudden and unexpected traumatic event” in Section 5.1 of the Act, when read together with Policy 13.30, is contrary to the Charter because it discriminates against individuals who suffer from purely mental work related injuries. The provisions force workers with purely mental injuries to meet a significantly higher threshold for compensation than those who suffer physical injuries, or who suffer mental injuries linked to physical injuries. As a remedy, the Court severed a number of provisions of Policy 13.30 and declared them to be of no force or effect.

This decision lowers the threshold employees must meet in order to receive workers’ compensation benefits for work related mental injuries. It will be of significant interest to all employers whose operations are subject to workers’ compensation legislation.

Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188