Wade Dennis Proctor v. Whitler Industries Limited, 1992 CanLII 6314

[1992] OLRB Rep. July 875

3248-90-OH Wade Dennis Proctor, Complainant v. Whitler Industries Limited, Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.

APPEARANCES: Linda Vannucci-Santini and Wade Dennis Procter for the complainant; R. H. Parker for the respondent.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE: July 16, 1992

1. This is the continuation of a complaint under the Occupational Health and Safety Act. By decision dated May 3, 1991, reported at [1991] OLRB Rep. May 718 the complaint was allowed and Mr. Procter was ordered to be reinstated and compensated for his losses due to the unlawful layoff. The Board remained seized in case the parties were unable to agree on the quantum of compensation owing. Since they were not able to agree, the matter was rescheduled to deal with the complainant's claim for vacation pay, damages for mental distress and for the loss of coverage of a dental plan.

ADJOURNMENT REOUEST

2. The matter of compensation was originally scheduled to be heard on December 9, 1991. On November 20, 1991, counsel for the complainant asked the Board to adjourn that date because the complainant was undergoing surgery which required a six-week recovery period. On November 21, 1991 the Board received a letter from the employer, Mr. Parker, asking that there be no hear­ing on December 9, 1991, because he did not feel that a hearing was necessary on the issue of dam­ages at all. On November 27, 1991, having been approached for consent to the requested adjourn­ment by complainant's counsel, Mr. Parker wrote to the Board, saying that he did not agree to an adjournment because he could not agree on any necessity for delay and did not agree that Mr. Procter's surgery necessitated the recovery period stated by his doctor. Mr. Parker's earlier request to cancel the hearing on December 9 and have no hearing was then renewed in his letter to the Board dated the next day, November 28, 1991.

3. Mr. Parker wrote on December 3, 1991 asking for the reasons for the decision to grant the adjournment, which we now provide. Given that the complainant's request for an adjournment was based on medical grounds, supported by medical documentation, in sufficient time to resche­dule the matter within a reasonable period of time, i.e. January 16, 1992, the Board granted the adjournment. There was no prejudice cited by Mr. Parker in his letter communicating his opposi­tion to the delay, and in any event, the following day repeated his desire to have no hearing at all.

The Damages Issue

4. The facts leading to the Board's decision to allow the complaint are more fully set out in its earlier decision, but may be briefly summarized here. The complainant lost the top of his finger while cleaning a dust collector at work in January, 1991. He was off work on compensation for a month. When he returned to work, he found the dust collector in the same state as when he had injured his finger, and the workplace in a state that he found unsafe. His immediate complaints to his foreman were followed by his termination later the same day.

5. The complainant testified that since the time of the loss of part of his finger at work in January 1991, he has suffered nightmares, frequent headaches, and stress and that his layoff a month later made it worse. He has also had feelings of fear and finds that any contact with Whitler Industries or Mr. Parker causes him great stress. Relating to the period of time around the dis­charge he specifically mentioned being disturbed by his treatment when trying to get his separation papers. Mr. Procter testified that Mr. Parker had him return twice before filling out a separation slip and made remarks such as, "I want to fire you, but I can't get away with it, so I am laying you off." Mr. Parker did not deny making such remarks. Mr. Procter has had a number of other stress­ful contacts with Mr. Parker since his discharge, concerning his reinstatement as well as other mat­ters.

6. Mr. Procter was offered reinstatement on May 23, 1991, by Whitler Industries, further to the Board's May 3, 1991 decision. However, due to Mr. Procter's continuing difficulties with his finger and carpal tunnel syndrome (a wrist condition, often affecting finger mobility), he had been continuously unable to return to work up to the time of the hearing on the damages issue. For peri­ods up until November, 1991, Mr. Procter was in receipt of Workers' Compensation Benefits. However, in August, 1991, Whitler Industries wrote the Worker's Compensation Board (WCB), questioning the relatedness of the carpal tunnel syndrome to the workplace injury. Sometime prior to the cessation of benefits in November, the WCB decided that the carpal tunnel condition was not related to the compensable injury and terminated benefits, a decision which was under appeal by Mr. Procter at the time of the hearing on the damages issue.

7. The Board admitted, over the objection of the employer, medical reports concerning the complainant's claim that the discharge caused him mental distress. The April 24, 1991 opinion of the complainant's psychiatrist describes a mild post-traumatic stress disorder arising from the workplace injury which he finds unsurprising given the horrific nature of the injury. Further, he says the disorder "seems to be perpetuated by the unresolved work situation and the rage he feels." Further, it states that "the symptoms seem to be intensified by the unresolved health issues...." and recommends postponement of therapy until after the next series of meetings in Toronto (possibly referring to the Board's hearing on the merits.) In his June 11, 1991 report, Mr. Procter's family doctor, whom he has seen approximately weekly since the time of the injury speaks of psychological strain resulting from the injury. He says as well:

Contributing to his ongoing struggle was the termination of his job this winter. For a three week interval immediately following this event, he felt quite depressed. He expresses to me the anger, humiliation and frustration over the inconsistent and contradictory dealings he had with his employer.

Mr. Procter has suffered a stress reaction that resulted in nightmares, loss of self-esteem and a phobia towards his former work site. This stems from his injury and has been reinforced by his job termination.

He later saw the psychiatrist again in August and December 1991.

8. Mr. Procter expressed concern about what use would be made of the medical reports, of which Mr. Parker was given copies. During the hearing, the Board made it clear that the medi­cal information put into evidence in this hearing was only to be used for the purposes of the litiga­tion in front of the Board.

9. As to the claim for dental benefits, Mr. Procter testified that he had an abscessed tooth which required extraction in July, 1991, which cost three hundred dollars. He was then informed that he needed root canal work which would cost seven hundred dollars and seven fillings at one hundred dollars each. He has not been able to afford the root canal work or the fillings and has thus not had that work done. Evidence indicated that this dental work is covered by the dental plan in place at Whitler Industries. Mr. Parker testified that benefits are discontinued on termination of employment, and that was why the plan did not cover Mr. Procter's dental needs. He said that if Mr. Procter had returned to work in May 1991, after the Board's order, he would have been cov­ered. Mr. Parker has not previously dealt with the question of benefits while on sick leave, but he testified that whether or not the insurance company pays depends on what he tells them as to the employee's status.

The Parties' Submissions

10. Complainant's counsel argued that the Board's jurisdiction to award mental distress damages was established in Jacmorr Manufacturing Limited, [1987] OLRB Rep. Aug. 1086, and that this is a proper case in which to award them. The broad remedial discretion of the Board was also relied on to support this claim. Counsel also made reference to Vorvis v. ICBC, (1989) 25 C.C.E.L. (S.C.C.), to demonstrate the availability of such damages at common law in cases of wrongful dismissal. As to the amount of damages for mental distress, counsel said that the courts have ordered damages from $500 to $25,000 on this head of damages, and left the matter in the Board's hands. On the subject of the dental benefits, counsel argued that had the complainant not been unlawfully dismissed, he would have been covered for the dental work, and thus should be awarded the full cost of the necessary work.

11. Mr. Parker, the employer, takes the position that if damages for mental distress were to be awarded in this case, they would be warranted every time an employee did not like his or her employer. Additionally, he argues that based on the Jacmorr decision, supra, this is not a proper case for mental distress damages because there was no mention made of the damages in the initial hearing on the merits of the complaint. Mr. Parker also questioned the validity of the family doc­tor's opinion on stress. He suggests that not only should no damages be awarded, but that Mr. Procter was better off on WCB benefits than he would have been working for Whitler Industries, due to the differential tax treatment of WCB benefits. He urges the Board to take that into account as well.

12. Mr. Parker's position on the dental benefits is that if Mr. Procter was subject to rein­statement during the period in which the dental work was needed he would be entitled to the bene­fits but since he did not return to work, for reasons beyond the control of Whitler Industries, he should not be entitled to the benefits.

Decision

13. The complainant claims damages for mental distress due to the unlawful discharge up to May 7, 1991, shortly after the release of the Board's decision allowing the complaint. The period of time claimed does not include the periods of difficulty getting a phone in June, because of the employer's advice to the phone company that the complainant no longer worked there, or in deal­ing with the potential of modified work with the WCB in the fall and winter of 1991, which Mr. Procter alluded to in his testimony as also stressful.

14. The Board's jurisprudence on the subject of damages for mental distress is limited. The matter was considered most recently in the Jacmorr decision, supra. In the circumstances of that case the Board declined to award them, because the claim had not been raised in a timely manner. Nonetheless, the Board clearly found that its broad remedial jurisdiction included the possibility of such damages and saw no reason why the Board should be less sensitive than the courts or other tribunals to the possibility that illegal conduct might give rise to this form of general damages.

15. A somewhat related discussion appeared in the earlier Board decision in Newport Sportswear Limited, [1981], OLRB Rep. July 905, at paragraphs 47 to 51. In that case, the Board declined to award damages for assault on the complainant's dignity, finding that the evidence did not warrant them. In doing so it referred to K-Mart, [1981] OLRB Rep. Jan. 60 and [1981] OLRB Rep. Feb. 185 where the Board had originally ordered damages for assault on dignity but had then withdrawn the order. This was because the union had consented to an order of the Divisional Court staying the payment of compensation pending judicial review, which removed the immediate remedial impact of the order, as well as the fact that the issue had not been fully argued. While counselling caution in exercising its discretion to award non-pecuniary damages, the original award was made in light of the Board's conclusion that the other available remedies would be ineffective to remedy the situation where a calculated offence to the dignity of an individual was the very means by which an unfair labour practice had been achieved.

16. Thus, the Board to date has not awarded damages specifically for mental distress, not because it lacks jurisdiction to do so, but because cases where they have been claimed to date have not involved circumstances in which the Board found it appropriate to do so. In K-Mart, it had awarded damages for assault on the complainant's dignity, a closely related concept, but the order was later withdrawn. In each case, the object is to return the complainant as nearly as possible to the situation he or she would have been in if the statute had not been breached, insofar as that is possible, either by may of monetary redress or other remedies. The goal is to make the complain­ant whole, avoiding under or over-compensation. Although the conduct of the respondent is rele­vant in assessing the probable impact on the complainant, and therefore the likelihood of loss, the Board's remedial power is only compensatory. It is not punishment for the respondent's behav­iour. The focus must be on what loss the complainant suffered and how it may be remedied.

17. The respondent asserts that this case is analogous to Jacmorr in that the claim for dam­ages was raised too late. Although there was no evidence related to this issue at the original hear­ing on the merits, the matter had been raised in the amended complaint, well before the first hear­ing. The Board made it clear at one point in the hearing that it would likely remain seized on the question of damages, to which neither party objected. Thus, the claim was raised in a timely man­ner and is properly entertained by the Board. Mr. Parker also argued that because the complainant was better off financially on Workers' Compensation benefits than he would have been working at Whitler Industries, the Board should award no damages for mental distress. If there had been a wage loss claim, this is a matter which we might well have taken into account in calculating dam­ages. We are not of the view that it is a pertinent consideration in determining an issue of non-pecuniary damages such as those claimed for mental distress.

18. At common law, damages for mental distress are available in actions for wrongful dis­missal, under certain limited circumstances, as set out most recently by the Supreme Court of Canada in Vorvis v. ICBC, supra. That case made clear that damages in successful actions for wrongful dismissal are to be determined on the basis of what was in the reasonable contemplation of the parties to the contract. Since dismissal with notice is in the presumed contemplation of employers and employees in a non-organized situation, the damages flow from the lack of notice, and not from the dismissal. In that situation, damages for mental distress have to be shown to be caused, not by the dismissal itself, but by some other aspect of the facts. The majority and minority opinions in the Supreme Court of Canada differed over the articulation of the test itself, and the extent to which the source of the mental distress need be "independently actionable" or not, but it is clear from both sets of judgements, and the jurisprudence that preceded it, that the courts did not see damages for mental distress in wrongful dismissal actions being routinely available, even granted the point that dismissal is normally stressful. (See, for example, Brown v. Waterloo Regional Board of Commissioners of Police, (1983), 1983 CanLII 1697 (ON CA), 150 D.L.R. (3d) 729, among others.)

19. Although much of the discussion in Vorvis is pertinent to the considerations before us as to how to place Mr. Procter in the position he would have been had the respondent not breached the OHSA, there is an important difference in the legal context in which the issue arises. This is not an action for breach of contract, as is an action for wrongful dismissal. Nor is it an action in tort for intentional infliction of mental suffering, or any other tort. Nor is it a claim for compensation for a breach of a collective agreement, as in Re Ontario Hydro and C. U. P. E., 1990 CanLII 12690 (ON LA), 16 L.A.C. (4th) 264, where Arbitrator Kates applied the Vorvis case to require a breach of the collec­tive agreement other than the discharge itself to be necessary to found a claim for damages for mental distress in that context. It is a claim for compensation for breach of a statute, which cer­tainly should not be held to be in the reasonable contemplation of parties to an employment con­tract. See in general on the subject of damages in cases of statutory remedies A-G of Canada v. Morgan, 1991 CanLII 13184 (FCA), 85 D.L.R. (4th) 473 (Fed. C.A.). See also Piazza v. Airport Taxicab (Malton) Assn., (1989) 69 O.R.(2d) 282 (C.A.), which approved of a decision of a Board of Inquiry under the Ontario Human Rights Code concerning a discharge found to be unlawful under that statute, which did not consider itself limited to the measure of damages appropriate in an action for unjust dismissal. The Court of Appeal expressly approved Whitehead v. Servodyne Canada Ltd. (1987), 1986 CanLII 6525 (ON HRT), 8 C.H.R.R. D/3874, which had held that the usual measure of economic loss in contract law for wrongful dismissal was not the correct measure of damages to compensate an aggrieved complain­ant under the Human Rights Code, since it would often be inadequate to compensate the com­plainant and also to carry out the purposes of the Code.

20. We accept, as a general theoretical matter, that the measure of damages in contract cases will not necessarily be appropriate in remedying breaches of the OHSA. Breaching a statute is a matter of public law, not the private law written by the parties to a contract. One is not con­strained here by the terms, express or implied, of the parties' contract, although they will often be relevant in assessing loss, e.g. wage loss. The Board is free to tailor the remedy to the actual dam­aging effects, given the fact that the Legislature left the Board to use its broad discretion as to rem­edy as set out in the Labour Relations Act. At times, this may mean a more extensive remedy than in contract; at other times, it could be less.

21. In considering the issue of damages for mental distress, the questions to be answered by the Board are not essentially different than in any other area of damages: Was there a loss due to mental distress caused by the breach of the statute? This will involve deciding whether the evi­dence supports a finding that the impact on the individual is identifiable mental distress ,i.e. nega­tive stress going significantly beyond the normal stress of life and work with its inevitable frustra­tions, personality conflicts and difficulties of all sorts. If there is a mental distress loss, what remedy can best put the complainant in the position he or she would have been if the statute had not been breached? What complicates the issue of damages for mental distress is that the loss, and by resulting necessity the effect of the remedy, are intangible, and less readily determinable, both in terms of fact finding, and in terms of choosing what remedial direction is necessary to, as far as possible, undo the damage done to the complainant. The question of how extensive the mental dis­tress is can appropriately be dealt with at the stage of choosing what remedy, including what quan­tum, if any, of damages should be awarded. The Board must also consider whether the damages claimed are too remote in the chain of causation to be recognized.

22. The courts have made clear in general that the onus is on the complainant to prove claimed damages when disputed, and that awards of damages without evidence and the chance for the party opposite to challenge mitigation may be suspect. See, for example, Red Deer College v. Michaels et al. 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 and The Queen in Right of Ontario v. OPSEU, April 26, 1990 (Div. Ct.) (the Cahoon case). Accordingly, when claiming damages for mental distress, a com­plainant may well make relevant much of his or her personal and mental health history which would otherwise be irrelevant to the hearing of a complaint such as this (and reluctance to make public such material, or be cross-examined on it, may well be a sufficient reason for a complainant to decide not to pursue such damages).

23. Has the complainant shown he suffered a mental distress loss caused by the unlawful discharge? There is uncontradicted medical evidence that he suffered mental stress as a result of the termination, and that it aggravated the level of stress he was experiencing after his serious occupational injury. Although Mr. Parker questioned the validity of the family doctor's opinion in a psychiatric matter, the family doctor's opinion is consistent with the psychiatrist's. It remains uncontradicted, and not inherently lacking in credibility. Therefore, we have no legal basis to ignore it. The evidence does not establish any reason to conclude that the additional stress outlined in the medical reports probably resulted from something other than the unlawful discharge.

24. It is reasonable to conclude from Mr. Procter's testimony and all the circumstances of the case that a successful return to work after the loss of part of his finger might have alleviated some of the stress he was experiencing at that point. Instead, his abrupt termination within hours of his return to work, for complaining about safety conditions related to his injury, had an exacer­bating effect on his symptoms of stress. His family doctor mentions a period of three weeks of depression. In April, three months after the discharge, the psychiatrist found both the unresolved employment situation and the unresolved health issues to be perpetuating factors in the mild post-traumatic stress disorder he diagnosed. Thus, the unlawful discharge caused increased symptoms of stress and a loss of peace of mind in the form of depression and perpetuation of a stress disorder. We are satisfied that these facts fall within the category of mental distress, rather than more com­mon forms of stress and aggravation. Although the evidence did not establish that the effect on Mr. Procter's mental state was part of Mr. Parker's considerations when he fired him, it was fore­seeable that an abrupt, unlawful discharge, related as it was to a safety concern that had earlier resulted in the loss of part of Mr. Procter's finger, would cause mental distress to Mr. Procter. Thus the damages are not too remote in the chain of causation to be recognized.

25. What is the appropriate award in this case to compensate Mr. Procter? Have his losses already been remedied by the Board's earlier finding of breach of the OHSA and order of rein­statement? Given that the Board's goal is to neither under, nor over-compensate, it would not be appropriate to award damages for mental distress when other remedial orders of the Board had, as far as possible, put Mr. Procter back in the position he would have been had the breach of the Act not occurred. In this case, it cannot be said that the mental distress loss has been remedied, even if the complainant had been reinstated (which he had not been as of the time of the hearing on dam­ages, through no one's fault). The evidence indicates that the increase in mental distress caused by the unlawful discharge was real and serious, related as it was to a safety concern about the very problem which had taken part of the complainant's finger a month earlier. The part of the earlier award which allowed for the possibility of damages for mental distress was the portion which awarded damages for any losses due to the layoff, but left it to the parties to work out quantum, which they were unable to do. The evidence before us is persuasive that there was a mental distress loss due to the layoff.

26. We are of the view that an award of damages in the amount of $500 is the appropriate award for mental distress in this case. The damages are set at this level because of the fact that the evidence indicates that the stress which followed his injury and the unresolved health issues were the major components of the complainant's mental distress, while the discharge was an exacerbat­ing factor.

27. The main reason, other than the evidentiary and procedural matters dealt with above, put forward by the respondent for not awarding damages for mental distress is the assertion that this would lead to an award for mental distress damages whenever an employee did not like his employer. This is not a likely outcome of an award for mental distress on the evidence in this case, nor a tenable basis for their award. The basis for their award is the evidence of their causation by the illegal discharge, rather than any personal antipathy to Mr. Parker, and the lack of an effective alternative remedy in the circumstances of this case.

28. As to the claim for the dental work, the evidence indicates that the plan in place at Whitler Industries covered the type of work that the complainant needed. Given that the only spe­cific evidence of a disentitling event was the unlawful discharge itself, and that there is no evidence before us that sick leave or absence on workers' compensation would have disentitled Mr. Procter from the receipt of dental benefits, we declare that Mr. Procter was entitled to their receipt. The respondent may either arrange for the carrier to cover the work, or pay to Mr. Procter the amount of $1,700.

29. As to vacation pay, Mr. Parker agreed that he owes 4 percent of whatever Mr. Procter earned between September 1990 and February 16, 1991. The Board so declares and will remain seized if there is any difficulty calculating that amount.

30. In summary, then, the respondent is ordered to pay to the complainant the following:

(a) $500 as damages for mental distress, with interest thereon from Feb­ruary 17, 1991,

(b) $1,700 (or arrangement for coverage by the carrier) for dental work, with interest thereon on the portions Procter paid himself from the dates he paid them, and,

(c) Vacation pay to be calculated on the basis of 4 percent of the com­plainant's earnings between September 1990 and February 16, 1991, with interest thereon from the last date for which he was paid.

The interest rate will be as in Practice Note 13, i.e. the prime rate as determined and published by the Bank of Canada in the Bank of Canada Review for the month of February, 1991, the month the complaint was filed with the Board.

31. The Board will remain seized to deal with any difficulty in implementing this decision.

DECISION OF BOARD MEMBER R. W. PIRRIE; July 16, 1992

1. I dissent from that portion of this majority decision which awards damages for mental distress to Mr. Procter.

2. I agree with the majority of the panel that the Board has the jurisdiction to award dam­ages for mental distress. However, I disagree that this case involves circumstances which warrant such an award, and therefore such a significant departure in Board policy.

3. In the Newport and K-Mart cases cited in the majority award, the Board was dealing with unfair labour practices. The line of reasoning evolved in those cases for not awarding or awarding mental distress damages is, in my opinion, equally applicable to wrongful discharge cases under the Occupational Health and Safety Act. In Newport the employee most active in organizing the union was fired after having been threatened and vilified by the owner of the company. The union sought reinstatement for the employee which was awarded, as well as a specific monetary award for humiliation and loss of dignity which was not awarded. In that case the Board com­mented that "where the Board concludes that it is the discharge itself that constitutes the unfair labour practice and not the means by which it was carried out, reinstatement with full compensa­tion will normally remedy the violation." In the instant case Mr. Procter was treated no more harshly than the employee in Newport.

4. In K-Mart an award was initially ordered for the assault on the dignity of two employ­ees. In that case the employees were not terminated, but rather subjected to, "a ruthless campaign of surveillance that endured for some three weeks." In the absence of the reinstatement remedy the Board awarded damages to the two employees for the assault on their dignity. In my opinion that award was an appropriate remedy in the circumstances of that case.

5. The courts, and indeed society have long recognized that every termination, whether lawful or unlawful, puts the person terminated under a degree of mental stress. Witness the elabo­rate counselling processes that have evolved in recent years to assist employees to cope with the fact of termination. A significant factor in generating stress in the termination situation, and more particularly in unlawful situations, is the loss of income. In the instance case Mr. Procter suffered no loss of income. As noted in paragraph 6 above Mr. Procter was in receipt of Workmen's Com­pensation benefits throughout the period.

6. In arriving at the decision to make a monetary award of $500.00 to Mr. Procter, the majority decision places great significance on the two medical reports which the complainant put into evidence. This medical evidence was largely uncontradicted by the respondent. One of the reports is a letter dated April 24, 1991 from a Dr. N. Oliver, M.D., associated with the Community Mental Health Clinic in Kingston, Ontario to Mr. Procter's doctor, a Dr. A. Silverberg in Peter-borough, Ontario, which is quoted in part at paragraph 7, page 3 of the majority decision. I find it instructive to consider the entire context of that letter;

"Dear Dr. Silverberg:

Re: Wade Procter

We have seen the above-named as requested on April 18, 1991 in consultation and the story is, as you are aware, that he lost the end of his fingers (Mr. Procter in fact lost the tip of the small finger on his right hand) in an industrial accident for which he has been on Workman's Compen­sation since January 11, 1991. Since that time, and with one revision of the stump, he complains of headaches up to five times a day, anger, nightmares about the incident, and repeated memo­ries, with emotional content, of the incident. He feels frustrated and angry, he says, that he can not get back to work and is working this through the Health and Safety Board.

(Paragraphs 2 and 3 containing personal family background have been omitted).

Although Mr. Procter has had a long term of excessive drinking he denies blackouts except for the last two years of alcoholism and has never experience psychosis, shakes, or DT's. He used soft street drugs in conjunction with the alcohol and this may have intensified some symptoma­tology. Mr. Procter claims to have been sober now for five months and with only four episodes of being drunk since 1989.

On examination he presents as a reasonably groomed gentleman who appears his stated age of 32 years. Affect is unremarkable. There were no ticks on his mannerisms, disorders of speech or articulation. Our conversation was occupied with the accident and his rage towards the employer and the business for the poor treatment of him. He denies illusions, hallucinations or delusions and demonstrates none. He was oriented in three spheres. Memory appears intact.

In summary we have a 32 year old male who presents with emotional liability, headaches, night­mares of the incident, emotional preoccupation with the incident, and consistent anger towards the employer. He denies symptoms of any major disorder and shows none.

Given the somewhat horrific nature of the circumstances surrounding the injury it is not surpris­ing that he had developed a mild post-traumatic stress disorder which seems to be perpetuated by the unresolved work situation and the rage he feels. Mr. Procter was ambivalent about enter­ing into therapy for this and as the symptoms seem to be intensified by the unresolved health issues we have suggested that he is more than welcome to return here however it would make sense to delay this until after the next series of meetings in Toronto.

Given the addictive personality I could not recommend any medications to deal with the anxiety symptoms to which he would not likely become habituated. Should Mr. Procter wish more ongoing therapy he will contact your office, or contact us and present for regular appointments until a more convenient Peterborough psychiatrist can be found.

Thank you for your referral.

Yours sincerely"

7. The picture I perceive is a recovered alcoholic claiming to have been sobered since November 1990 - some two months after his employment by Whitler Industries in September 1990. No doubt a stressful situation for Mr. Procter.

8. In January 1991 Mr. Procter lost the end of the small finger on his right hand while cleaning an exhaust system at work. No doubt a stressful situation for Mr. Procter.

9. On his return to work in February 1991 he found the situation described in paragraph 4 of the majority award, i.e. "the dust collector in the same state as when he had injured his finger, and the workplace in a state he found unsafe." No doubt a stressful situation for Mr. Procter. However, instead of refusing to work and lodging a complaint under the Occupational Health and Safety Act, Mr. Procter's reaction, in his words, was to lose his temper and start hollering and screaming. I would suggest Mr. Procter was already in a highly stressed state of mind before he was terminated.

10. In my opinion, taken in its entirety, Dr. Oliver's report does not support Mr. Procter's claim of mental distress stemming from his termination. What I find relevant in Dr. Oliver's letter is:

• in the first paragraph quoted Mr. Procter's symptoms of ".... headaches up to five times a day, anger, nightmares... repeated memories, with emotional content..." are tied directly to the loss of the tip of the finger in the industrial accident.

• in the fourth paragraph quoted the doctor again relates Mr. Procter's symp­toms of "headaches", "nightmares" and "emotional preoccupation" to the industrial accident. Mr. Procter himself denies symptoms of any major disor­der, and Dr. Oliver indicates that he shows none.

• what is reflected in paragraphs one and four is frustration and anger that he cannot get back to work and consistent anger toward the employer.

• in the fifth paragraph quoted Dr. Oliver observes that it is not surprising that Mr. Procter developed a mild post traumatic stress disorder vis-a-vis the injury which seems to be perpetuated by the unresolved work situation. No suggestion the mild stress disorder was caused by the termination.

• going on in the fifth paragraph Dr. Oliver observes that Mr. Procter was ambivalent about undertaking therapy for his stress disorder, nor does the doctor promote such treatment.

• lastly in the fifth paragraph the reference to "unresolved health issues" is I suggest a reference to Mr. Procter's having undergone a revision to the stump of the finger amputated on March 27 some two weeks before the meeting with Dr. Oliver.

• in the sixth paragraph the question of ongoing therapy is treated in a very casual way "should Mr. Procter wish more ongoing therapy he will contact your ("Dr. Silverberg's) office". Not exactly the stuff of a great mental dis­tress disorder in my opinion.

11. I turn now to Dr. Silverberg's letter of June 11, 1991 addressed to the Toronto Worker's Health and Safety Legal Clinic in Toronto and more precisely Miss Vannucci-Santini who acted as counsel for Mr. Procter. This letter is also quoted in part at paragraph 7 of the majority award. Again I find it instructive to quote the first two sentences of the letter which were omitted:

"I have known Wade Procter since January 1991 and have followed him closely since then. We have focused on his psychological strains resulting from the recent injury sustained at work."

The letter then goes on as quoted at paragraph 7 at page 3.

12. In general I put this letter in the category of self serving evidence. That said, Dr. Silver-berg's association with Mr. Procter appears to be coincident with his finger injury. In addition the letter refers to the psychological strains stemming from the work injury, and cites the termination of his job as a contributing factor.

13. A portion of the evidence which I cannot ignore however is that Mr. Procter made a claim to the Workmen's Compensation Board for mental stress compensation. The claim was rejected by the Board and Mr. Procter has appealed that rejection, as he is appealing the rejection of his claim re carpal tunnel syndrome. Even allowing that WCB might have its own criteria for mental stress cases, I find the claim rejection to be not without significance.

14. I agree with the majority of the panel that Mr. Procter suffered, and likely still suffers from mental distress. With respect I disagree that the evidence before us is persuasive that there was significant mental distress due to the termination which justifies an award beyond reinstate­ment.

15. Consistent with our earlier order to reinstate Mr. Procter I would concur in that portion of the award concerning dental work and vacation pay.