CITATION: Mihindukulasuriya v. WSIAT and Aramark Food Services, 2023 ONSC 3461

COURT FILE NO.: DC-985/21

DATE: 20230608

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Laksaman Fernando Mihindukulasuriya (Applicant)

AND:

Workplace Safety and Insurance Appeals Tribunal (Respondent)

AND:

Aramark Food Services (Respondent)

BEFORE: McWatt A.C.J.S.C., Backhouse and Howard JJ.

COUNSEL: Applicant, self-represented

Mariam Moktar, for respondent Workplace Safety and Insurance Appeals Tribunal

Laura Freitag, for respondent Aramark Food Services

HEARD: June 7, 2023, at Toronto, by videoconference

ENDORSEMENT

BACKHOUSE j.

Overview

[1] This is a judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) dated May 21, 2021 (“the Decision”), denying the applicant’s appeal of a Workplace Safety and Insurance Appeals Resolution Officer’s decision. The underlying decision denied the applicant’s claim for benefits for chronic or traumatic mental stress arising out of and in the course of his employment.

[2] No factum was filed by the applicant. Instead, over 200 documents were uploaded to CaseLines, all of which were identified only as “Scan” with a random number.

[3] The applicant submits that the Decision is unreasonable because it refused his claim on the basis that his mental illness was due to a job reclassification rather than harassment, discrimination and abuse that he was subjected to throughout his employment. WSIAT and Aramark submit that the application should be dismissed. For the reasons set forth below, the application is dismissed.

Background

[4] The applicant started working for the respondent, Aramark in August 2007. Aramark provides food services to large institutions, including a university where the applicant was employed. On December 12, 2013, the applicant was informed that he had been reclassified from a “cook” to a “cook’s helper”. This appears to have gone into effect in 2012. This reclassification impacted his wages.

[5] On December 14, 2013, the applicant sought medical attention for psychological distress and subsequently obtained treatment from psychiatrists. The applicant contacted his Union about reclassification, was dissatisfied with its response, and filed a complaint against the Union at the Ontario Labour Relations Board. This complaint was dismissed.

[6] Further, the applicant filed an application against Aramark under the Employment Standards Act[^1] that was denied. He also filed a human rights complaint against the employer for discrimination based on ethnicity and other issues. The ethnicity-based complaint was dismissed on the merits, and the other matters were dismissed for being out of time.

[7] In November 2022, this court heard an application for judicial review of the Human Rights Tribunal of Ontario decisions. The court dismissed the application.

[8] In September 2014, the applicant initiated a claim to the Workplace Safety and Insurance Board (“WSIB”) for stress related injuries. He continued to work for the employer until September 23, 2014 (at which point he stopped attending work), and his employment was ultimately terminated in February 2015. The WSIB denied the claim under the Workplace Safety and Insurance Act^2, and the former Traumatic Mental Stress policy in October 2014. The denial was upheld on reconsideration in March 2016 and again upheld by an Appeals Resolution Officer (“ARO”) in August 2016. The ARO decision was appealed to the WSIAT, but due to legislative changes the claim was returned to the WSIB for adjudication under the new WSIA’s mental stress provisions. Ultimately, the applicant’s claim was still denied and the WSIAT heard the appeal.

WSIAT Decision Under Review

[9] The hearing was held in September 2017. The applicant discussed many incidents in the workplace at the appeal. The WSIAT addressed two specific incidents: the “knife incident” and the “jacket incident”. The applicant also made submissions before this court in regard to the “jacket incident”.

The Knife Incident

[10] The applicant submitted to the WSIAT that following a meeting in September 2014 to discuss the applicant’s reclassification, he returned to work, and an employee, who was working with a knife at the time, pointed the knife at him and told him to stop talking about his wages and to be satisfied with what he was getting at work. The WSIAT found that there was a lack of evidence to support a finding that the incident was objectively life threatening and traumatic (the standard for the traumatic mental stress policy) to be compensable under the traumatic mental stress policy.

The Jacket Incident

[11] The WSIAT also found that there was an incident of harassment when a chef (the applicant’s boss) grabbed his jacket and removed him from a room in 2008. However, the WSIAT found this was not compensable because it did not involve bodily injury, was not life threatening and did not support a finding of entitlement under traumatic mental stress.

[12] WSIAT found that the medical evidence ultimately identified the applicant’s reclassification and the resulting wage impact to be the major stressor affecting the applicant’s psychological health. The WSIA and WSIB specifically preclude entitlement for stress caused by employer decisions or actions relating to the worker’s employment. The WSIAT accepted that the applicant had a psychological condition that was significantly contributed to by workplace factors but found the workplace factors that predominantly contributed to the distress were not compensable under the WSIA. The WSIAT found that, even if the alleged incidents of misconduct occurred in the workplace, there was a lack of medical treatment for mental stress because of them. The WSIAT found there was a lack of medical evidence to substantiate that any of the alleged incidents were significant contributors to his psychological condition first requiring treatment in December 2013.

Statutory Framework

[13] WSIA governs the compensation and benefit scheme for Ontario workers injured in the course of employment. The applicant’s claim for benefits is governed by subsections 13(4), (4.1) and 5 of the WSIA, as amended on January 1, 2018. Subsections 13(4), (4.1) and 5 of the WSIA provide:

Mental stress

13(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

Personal injury

13(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident.

Same, exception

13(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Standard of Review

[14] It is well settled that the reasonableness standard applies to judicial reviews of Tribunal decisions.

[15] Courts have acknowledged that the Tribunal is a specialized and expert tribunal, which hears evidence, finds facts, decides questions of law, and deals with caselaw and policy in workplace safety and the statutory insurance scheme.

[16] The Tribunal has exclusive jurisdiction to hear appeals from decisions of the Board, which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under its home statute, WSIA.

[17] The Tribunal's decisions are subject to what the Ontario Court of Appeal has described as “the toughest privative clause known to Ontario law.” As a result, the Tribunal is to be accorded the “highest level of deference” with respect to its decisions.

Analysis

[18] The issues decided by the Tribunal in this case fall squarely within its area of experience and expertise. The Tribunal considered the WSIA and relevant Board Policies. The Tribunal considered subsections 13(4), (4.1) and (5) of the WSIA, which govern the applicant’s claim for benefits. The Tribunal correctly applied both its jurisprudence and Board policy. The Tribunal’s lengthy reasons were justified, intelligible, and transparent in respect of the facts and the law. As such, this is not a case where the court should intervene on judicial review.

[19] The applicant’s attempt to re-litigate the issue of alleged discrimination and the re-classification of his position is an inappropriate use of judicial resources and not a function of this court on judicial review. A reviewing court is not to interfere with findings of fact and the weighing of evidence by an administrative tribunal. While the applicant may have preferred that the Tribunal weigh evidence differently, the Tribunal’s determinations were reasonable and are entitled to deference.

[20] The Tribunal, in interpreting provisions of its home statute, as well as Board policies, is entitled to deference. The Tribunal considered the evidence and concluded that the applicant’s compensation claim was made in respect of his demotion and reduction of pay. The Tribunal considered the contemporaneous medical records that attributed the applicant’s psychological difficulties to his job reclassification and termination. The Tribunal found that the applicant’s first complaints of psychological distress were made to his family doctor on December 14, 2013, when he was diagnosed with depression and anxiety. The family doctor noted that the applicant had a “problem with working” and “depression with multiple somatic complaints”. It described his difficulties as an “Occupational Problem”.

[21] During the hearing, the applicant agreed that he was first diagnosed with mental health issues on December 14, 2013.

[22] The Tribunal’s decision that the alleged “knife” and “jacket” incidents did not amount to psychological impairment was reasonable. The Tribunal explained that the WSIB policies on traumatic mental stress provide that the incident experienced in the workplace must be objectively traumatic.

[23] The Tribunal held that there was a lack of evidence to support a conclusion that the knife incident was objectively life threatening and traumatic. While constituting a form of harassment, the incident did not involve bodily injury and would not have been life threatening. It held that while the jacket incident was capable of contributing to a pattern of workplace harassment under WSIB policies on chronic mental stress, it could not support a finding of entitlement under WSIB policies on traumatic mental stress.[^3] The Tribunal found that the applicant did not provide clear and precise testimony about the other alleged incidents of harassment and discrimination.

[24] The Tribunal held that even if it accepted that the applicant experienced some incidents of qualifying harassment in the workplace beyond the jacket incident, there was a complete absence of medical evidence to support a conclusion that the worker experienced a psychological impairment as a result of those incidents. On the other hand, the applicant received psychological treatment for the first time within two days of finding out that he had been reclassified and was losing money as a result of the reclassification. The Tribunal concluded that the predominant cause of the applicant’s psychological difficulties was the actions of his employer in respect of his employment duties, which are not compensable under the WSIA and policies.

[25] The Tribunal considered the relevant legislative provisions relating to the applicant’s claim as well as the relevant policies. Its interpretation of its home statute and relevant policies is owed deference. There is no flaw or gap in the reasoning. The Tribunal considered the evidence and testimony and came to a reasonable conclusion. The Tribunal’s decision that the applicant’s claim related to his demotion and reduction of pay was reasonable. There is no basis upon which to find the decision unreasonable.

Conclusion

The application is dismissed.

Costs

[26] The applicant was unsuccessful and is not entitled to costs. The WSIAT does no seek costs. As a result, no costs are awarded.

Backhouse J.

McWatt A.C.J.S.C.

Howard J.

Date: June 08, 2023

[^1]: Employment Standards Act, 2000, S.O. 2000, c.41. [^2]: Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A. [^3]: A worker is entitled to benefits for traumatic mental stress arising out of and in the course of employment. A traumatic event may be the result of a criminal act or a horrific accident and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In most cases, a traumatic event will be sudden and unexpected. (OPM document No.15-03-02 on Traumatic Mental Stress, January 2, 2018.)