Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Charter of Rights and Freedoms – Workers compensation – Benefits – Traumatic event – Psychological injury – employment related – Validity and application of policies – Judicial review – Compliance with legislation – Remedies – Charter relief
Plesner v. British Columbia (Hydro and Power Authority),  B.C.J. No. 856, British Columbia Court of Appeal, April 30, 2009, J.E. Prowse, C.A. Ryan and S.D. Frankel JJ.A.
Plesner suffered post-traumatic stress disorder in the course of his employment when a natural gas pipeline ruptured at his workplace and he believed that an explosion was imminent. His claim for compensation for a workplace injury was refused by the Workers’ Compensation Board. The Workers’ Compensation Appeal Tribunal (the “Tribunal”) upheld the finding that a mental stress injury was not compensable as it was not within the ambit of s. 5.1(1)(a) of the Act when read in conjunction with Policy Item No. 13.30. The Tribunal’s ruling was based on the finding that Plesner’s injury was not an acute reaction to a sudden and unexpected employment-related traumatic event. Plesner sought judicial review on the basis that the Tribunal’s decision was unreasonable. Plesner raised a number of Charter arguments in the alternative. On judicial review, the Court found that the reasons of the Tribunal were internally inconsistent and referred the matter for further clarification. Plesner appealed on the basis that the reviewing judge erred in failing to determine the Charter issues. Plesner had submitted that s. 5.1(1)(a) of the Act, insofar as it required proof that a purely mental work-related injury arose from a traumatic employment-related event as described in the Policy, contravened Section 15(1) of the Charter and could not be justified under Section 1.
The Court of Appeal held that the requirement of proving a traumatic event under s. 5.1(1)(a) of the Act when read together with the Policy, breached Section 15(1) of the Charter. The impugned provisions discriminated on the basis of a mental disability against individuals like Plesner that had suffered from purely mental work-related injuries. In order for such workers to obtain compensation, they were forced to meet a significantly higher causation threshold than those that suffered purely physical workplace injuries, or those that suffered mental injuries linked to physical workplace injuries. Causative or financial issues posed by mental stress claims did not provide a pressing and substantial basis for overriding the Section 15(1) Charter rights of a worker. Therefore, the Court held that the breach was not justified under Section 1 of the Charter.
In the result, the Court allowed the appeal. The Court held that the appropriate remedy was to sever the unconstitutional provisions of Policy 13.30 and to declare them to be of no force and effect.
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