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Ruling in prison guard harassment claim opens door to pre-98 chronic stress claims

A victory by a female former guard in a federal penitentiary could have big implications for others claiming benefits for chronic stress from the province's Workplace Safety and Insurance Board. In a decision issued on March 3, 2000, the Workplace Safety and Insurance Appeals Tribunal directed the Board to determine the compensation owing to the guard, who had stopped working some five years earlier due to increasing workplace stress.

During the course of the hearings into the guard's claim, the Board conceded that it had no policy limiting chronic stress claims in place that would bind the Tribunal. As a result of this admission, some 50 chronic stress claims that arose before the Harris government's Workplace Safety and Insurance Act came into force in January 1998 have a better chance of succeeding.

A "POISONED WORK ENVIRONMENT", A SERIOUS DISABILITY

The Tribunal heard evidence that, since the federal government decided in the late 1970's to hire female prison guards, things had not gone smoothly for the new female recruits. A 1993 report of a survey of female workers of the Ontario Region of Correctional Services Canada concluded that "harassment in the Region is endemic in the workplace and as such contributes to a poisoned work environment".

The claimant in this case had considerable experience of this environment. She gave evidence of humiliating treatment, including being directed to do strip searches of male inmates, while male colleagues looked on, making crude remarks. She was also placed in dangerous situations with little or no support or training from male co-workers. The claimant testified that complaints to her union were of no avail. Eventually, she started to cope with the stress by taking sick time. This too was a source of humiliation, as she was reprimanded in front of colleagues for taking too much time off, and was nearly fired for being off sick. In 1995, she stopped working altogether.

The result of her workplace history was a diagnosis of post-traumatic stress disorder, with symptoms such as frequent nightmares, flashbacks, night time hallucinations, panic attacks and depression. The Tribunal accepted that her "psychologically hostile environment" was a significant factor contributing to her "serious disability" and held that she was entitled to compensation under the Act.

WSIB: NO COMPENSATION FOR CHRONIC STRESS

Despite this ruling, no final decision could be made due to the position taken by the Board that chronic stress was not compensable. The disagreement concerned claims arising before 1998, when the Workplace Safety and Insurance Act came into effect. The new Act bars mental stress claims, except where the stress arises due to "an acute reaction to a sudden and unexpected traumatic event" on the job. Claims dating from before the amendments are not similarly barred. However, the new Act contains another provision, section 126, requiring the Tribunal to apply Board policy when making decisions, and this does affect pre-1998 claims.

The question, therefore, was whether there was a Board policy that had to be followed in this case. The Tribunal took the position that there was no such policy, stating that, at best, the Board's practice was to restrict compensation to stress arising from sudden, traumatic events, but that no consistent policy had been articulated.

However, in several letters addressed to the Tribunal in 1998 and 1999, the Board stated that it did have a restrictive policy in place for claims arising before 1998, although it acknowledged that the policy had not been "adopted pursuant to a minuted document". Then, on August 26, 1999, the Board formally adopted a policy barring compensation for pre-1998 claims of chronic stress.

TRIBUNAL: AUGUST 1999 POLICY INCONSISTENT WITH AND UNAUTHORIZED BY THE ACT

The Tribunal noted that the Board seemed to be saying two contradictory things: 1) it always had a policy, albeit an informal one, barring pre-1998 stress claims, and 2) the August 26, 1999 policy should be applied retroactively to pre-1998 claims. The Tribunal rejected both assertions.

It observed that there were at least four pre-1998 Board decisions granting compensation for chronic stress claims, casting doubt on the claim that a policy was in effect at the time, barring compensation. With respect to the retroactive application of the 1999 policy, the Tribunal noted that there is a strong presumption against retroactivity in the regulations or policies of an administrative agency. It concluded that the Board's 1999 policy was both inconsistent with and unauthorized by the Act and, in accordance with subsection 126(4) of the Act, referred the policy back to the Board for its direction.

Then, in a letter to the Tribunal dated February 18, 2000, the Board backed down, admitting that the August 26 resolution had not been "established through a formal enough process" to constitute a policy under section 126 that is binding on the Tribunal. As a result, the guard won her case.

In Our View

The 50 cases affected by this ruling are those of workers whose stress claims are under appeal to the Tribunal. There may be more, however, as union officials are urging two other groups of workers to pursue claims: 1) workers whose claims were denied by the Board and not appealed to the Tribunal, and 2) workers who never filed stress claims in the first place in the belief that the Board barred compensation for chronic stress. As noted above, this applies only to claims arising before the new Act, while the vast majority of chronic stress claims originating after January 1998 are barred by the Act.

It should also be noted that some lawyers for injured workers view section 126 of the Act as violating the Canadian Charter of Rights and Freedoms. They also claim that, by subjecting the Tribunal to Board policy, the Act compromises the independence of the Appeals Tribunal and breaches the principles of natural justice.

For further information, please contact Colleen Dunlop at (613) 940-2734.