Statutes Contrary to Charter Protections
Provincial statutes offering workers’ compensation benefits showing differing entitlements based on mental as opposed to physical disabilities have been found to be in violation of the Charter of Rights and Freedoms.
The Ontario Disability Support Program Act became effective in 1998. It provides disability benefits.
On the face of the legislation, a person was not eligible for assistance if he or she was addicted to alcohol or drugs, where he or she was not otherwise suffering from a physical or mental impairment. This provision was determined to be contrary to the Charter of Rights and Freedoms by the Divisional Court, as confirmed by the Court of Appeal. 1
In Ontario's Employment Standards Act, the employer was excused from making the statutory payment of severance. 2 in circumstances where the employment relationship was frustrated due to a medical disability.
The Ontario Court of Appeal 3found that the relevant provision of the Employment Standards Act was contrary to Section 15 of the Charter of Rights and Freedoms.
Accordingly the defence of frustration does not exempt an employer from paying statutory severance pay in Ontario. It is to be noted that the purpose of the severance pay provision is philosophically distinct from that of the common law wrongful dismissal claim. The severance pay due under the statute is intended to act as an acknowledgment of past service. It is clear that there is no mitigation obligation required to receive this statutory payment.
Similar arguments have been used to challenge provincial statutes which limit workers’ compensation claims based on the nature of the disability which renders the worker eligible for compensation.
For example, at one time, Ontario’s statute allowed claims for psychological stress only where there has been an acute reaction to a sudden and unexpected traumatic event.4
Challenges to the existing legislation and similarly worded statutes in other jurisdictions had met with success.
The statute in Nova Scotia prevented claims based on chronic pain and was determined to be contrary to the Charter of Rights and Freedoms. 5
A similar successful argument was made with respect to the B.C. statute 6which contained wording similar to that of Ontario which limited the right of the claimant for benefits due to mental distress due to severe reaction to a sudden unexpected event. B.C. passed amending legislation effective July 1, 2012[7] 7to allow for workers’ compensation claims due to a mental disorder which arises due to a reaction to traumatic events in the employment relationship or caused by bullying or harassment at work.
A similar challenge was successful in Ontario. The decision of the Workplace Safety and Insurance Appeals Tribunal (2157/09) did just what many observers had predicted it would.
The statute’s provision which limits entitlement to benefits due to mental distress was declared contrary to the equality section of the Charter of Rights and Freedoms and hence unconstitutional.
The worker’s appeal accordingly was allowed.
This decision, apart from allowing for immediate claims for compensation benefits based on work-related emotional distress claims, also has tremendous impact on employment law civil claims in which damages for emotional distress is claimed directly.
[7] by The Workers Compensation Amendment Act 2011, S.B.C. 2012, c.23,