Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases No clause allowing early termination by employer WSIA perpetuated stereotype of mental illness « from aFFaiR on page 7 « from Mental distRess on page 3 didn't seem surprised, said the court. Other email exchanges showed Shirbigi was upset and Russell felt she wasn't ready to be a district manager. e court also found Shirbigi was tell- ing the truth about the affair with Russell. e fact they kept their relationship secret, the rent-free occupancy of an apartment Russell owned, the trips together, and Shirbigi's contacting of Russell's wife at his prompting to cover it up pointed to such a relationship. "On balance, I am satisfied that Ms. Shirbigi and Mr. Russell were in a sexual relationshiop from approximately mid-Jan- uary 2010 to early September 2010," said the court. "I am similarly satisfied that this rela- tionship is the 'personal issue' to which Ms. Shirbigi later refers to in her email." e court also found it wasn't unreason- able for Shirbigi to reject the position at the store owned by Russell's brother, as it was a "significant negative change in responsi- bilities and working conditions" while still having close association with FreshSlice and her troubles with Russell. erefore, it couldn't be argued Shirbigi failed to miti- gate her damages by refusing employment offered to her at the Surrey store, said the court. With regards to the contract, the court found it was for a fixed term of three years with a provision that permitted Shirbigi to terminate with one month's notice. How- ever, this provision didn't automatically grant FreshSlice the same right without specific wording granting that right for the company, said the court. "It is noteworthy that FreshSlice was solely responsible for the terms of this bar- gain," said the court. "If FreshSlice intended to have the right to terminate Ms. Shirbigi on one month's notice then it could have included such a provision in the contract it was solely responsible for drafting." e court ruled Shirbigi's employment was terminated without cause. FreshSlice was ordered to pay Shirbigi for the balance of the contract, minus any employment in- come she earned, which came to a total of $49,098.66 plus interest and costs. For more information see: • Shirbigi v. JM Food Services Ltd., 2014 CarswellBC 2035 (B.C. S.C.). About the Author Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique, located in Markham, Ontario. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article. claims for physical injury and mental stress. Sections 13(4) and 13(5) exclude mental stress claims from compensation, unless the stress is an "acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employ- ment." is means workers with mental injuries that are gradual onset or workers whose acute mental stress is attributed to traumatic events that are not unexpected in their type of employment are not eligible for compensation under the WSIA. stress provisions violate charter guarantee Section 15 of the charter guarantees that "ev- ery individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimi- nation." e tribunal found that the legisla- tion drew a distinction between workers with physical injuries and workers with mental in- juries that was "substantively discriminatory" and therefore violated the charter. e law creates a disadvantage for work- ers with mental stress claims that are not traumatic, sudden and unexpected. It de- prives claimants of immediate financial compensation; to receive compensation for their injury, a worker must pursue a more costly and complex avenue for compen- sation — a tort remedy, where the worker must prove the employer's negligence and has no security of payment. e tribunal also recognized that by limit- ing mental stress claims, the legislation per- petuates the stereotype that mental illness is due to personal weakness, and those with mental illness are undeserving of protection by workplace insurance schemes. e tribunal also found that the WSIA limits mental health claims based on a false belief that it is more difficult to establish the work relation of mental stress claims. It concluded the work-relatedness of mental injury claims is not distinguishable from the work-relatedness of physical injury claims. Both types of claims are challenging and there is no agreed-upon test on how to de- termine causation, said the tribunal. e tribunal concluded that the limi- tations of mental stress claims under the WSIA violate s. 15 of the charter and can- not be justified. e tribunal thus refused to limit compensation of mental health claims to claims based on sudden, traumatic and unexpected events and awarded the nurse compensation for her mental stress claim. lessons for employers Although the tribunal decision is not bind- ing, only persuasive, chronic mental stress claims can be compensated. As a result, em- ployers may no longer be exposed to civil claims for emotional distress along with claims for moral, punitive and aggravated damages when an employee suffers mental distress in the workplace. Employers are well advised to review their policies and procedures for health-related claims. How this will effect WSIB premiums will depend on whether future applications for mental distress benefits under the tribunal will be successful. lessons for employees e decision means that employees with chronic mental distress claims may be en- titled to compensation under the WSIA. Employees with mental stress claims who proceed under the WSIA may lose their right to bring a civil claim and other claims for additional damages. However, employ- ees would not need to prove negligence and can receive compensation for their losses pursuant to the WSIA. For more information see: • Ontario Workplace Safety Insurance Ap- peals Tribunal Decision No. 2157/09, 2014 CarswellOnt 6239 (W.S.I.A.T.).

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