Stress at Work Mental Injury and the Law in Canada3

Stress at Work, Mental Injury and the Law in Canada:

A Discussion Paper for the Mental Health Commission of Canada

Respectfully submitted by Martin Shain, S.J.D. with the assistance of Carla Nassar, LL.B. August 15th 2008

[Revised February 21st 2009] Final [amended] Report

Submitted to the Mental Health Commission of Canada via the Advisory Committee on Mental Health in the Workforce

and the Advisory Committee on Mental Health and the Law

June 30, 2009

The Mental Health Commission of Canada (MHCC) is pleased to release the report Stress at Work, Mental Injury and the Law in Canada: A discussion paper for the Mental Health Commission of Canada, prepared and submitted to the MHCC by Dr. Martin Shain in August 2008. The report is the product of an inquiry initiated by the Commission's Advisory Committee on Mental Health and the Workforce in conjunction with the Advisory Committee on Mental Health and the Law.

The workplace is now recognized as an important influence on mental health. Between 10% and 25% of workplaces are characterized by conditions and environments considered mentally injurious. Occupational health physician specialists report that 50 ? 60 % of their caseloads are related directly or indirectly to mental health concerns.

While there is considerable uncertainty in terms of mental health protection in Canadian law and inconsistency across the country in the availability of legal remedies for mental injury, an emerging legal climate has signaled a duty for employers to ensure that the workplace leads to no serious and lasting harm to employee mental health. By definition, a psychologically safe workplace is one that permits no harm to mental health through negligence, recklessness or intention.

The MHCC is hoping that release of this report will stimulate debate on this topic, leading to eventual development of national public health policy for both the protection and promotion of mental health at work.

The Commission is interested in receiving feedback about the report. Please send any comments to info@mentalhealthcommission.ca

Michael Kirby Chair Mental Health Commission of Canada

The views represented herein solely represent the views of the Mental Health Commission of Canada.

Production of this report is made possible through a financial contribution from Health Canada.

Author's Note This study was initiated on behalf of the Mental Health Commission of Canada by Bill Wilkerson who, for the duration of the work, was Chair of the Commission's Workforce Advisory Committee. Throughout the study, Mr. Wilkerson provided the authors with invaluable advice on the structure and flow of the report. Dr. Ian Arnold, current Chair of the WAC, has been instrumental in supporting the advancement of this report to the MHCC Board. We are indebted to him. The authors are grateful also to the Hon. Mr. Justice Edward Ormston, of the Ontario Court of Justice and Chair of the Commission's Mental Health and Law Advisory Committee, for his most helpful reviews of successive drafts of the material. In addition, we wish to thank Catherine Skinner LL.B., Counsel, Law Department, Great West Life, London Life and Canada Life for her helpful and constructive comments on the August 2008 version of this paper.

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Table of Contents

Principal Findings and Implications for Policy

4

Chapter 1.

Stress at Work, Mental Injury and the Law: legal remedies for mental injury in

Canada. An overview with policy implications

11

Addendum to Chapter 1: toward a standard for Canada: beginning the

conversation

26

Chapter 2.

Drawing the Line: a detailed consideration of developments in the legal

recognition of harm to mental health in the workplace in Canada. Implications for

policy and practice

30

Table of Contents for Chapter 2

31

Appendix to Chapter 2 : Six Illustrations of the Law in Action

91

Chapter 3.

Management Standards and Stress in the UK Workplace: background and

commentary

99

Appendices to Chapter 3

Appendix 1:Background to the Filter Tools

111

Appendix 2 First Pass Filter Tool: Sources of stress at work

115

Appendix 3: Evaluation of the UK's Pilot Study of Psychosocial

Standards for Management? Edited from the HSE website

117

Appendix 4: Considerations for employers in predicting liability for

mental injury to employees: lessons from the U.K. courts

128

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