Dale v. Nova Scotia (Workers’ Compensation Appeals Tribunal, 2015 NSCA 71

Nova Scotia Court of Appeal Citation: Dale v. Nova Scotia (Workers’ Compensation Appeals Tribunal , 2015 NSCA 71 Date: 20150724 Docket: CA 410753 Registry: Halifax Between: John Dale Appellant v. Nova Scotia Workers’ Compensation Appeals Tribunal, The Workers’ Compensation Board of Nova Scotia, The Attorney General for the Province of Nova Scotia and the Nova Scotia Department of Justice Respondents and Office of the Employer Advisor Nova Scotia Group Intervenor Judge: The Honourable Justice David P.S. Farrar Appeal Heard: December 5, 2014, in Halifax, Nova Scotia Subject: Workers’ Compensation Law.

Canadian Charter of Rights & Freedoms, s. 15(1). Definition of “accident” Workers’ Compensation Act , s. 2 .

Summary: Mr. Dale says he suffers from gradual onset stress.

Section 2 (

a) of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10 excludes claims for gradual onset stress (or chronic stress) as a compensable workplace injury. Mr. Dale argues the exclusion discriminates against him on the basis of disability, thereby infringing s. 15(1) of the Canadian Charter of Rights and Freedoms . The Workers’ Compensation Appeals Tribunal rejected his argument. WCAT held, that although the impugned provision draws a distinction on an enumerated ground of discrimination, the distinction did not amount to discrimination under the Charter . Issues:

(1) Was there a sufficient factual foundation for consideration of whether the definition of “accident” in the Act violated s. 15(1) of the Charter ?

(2) If so, does the definition of “accident” insofar as it does not include stress other than an acute reaction to a traumatic event infringe s. 15(1) of the Charter ? Result: Appeal dismissed for different reasons than WCAT. There was an insufficient factual basis to allow WCAT to embark on a Charter analysis. WCAT never found that Mr. Dale’s condition constituted a disablement nor did it find that his injury arose out of and in the course of employment. These two findings were critical to allow it to embark on a Charter analysis. For this reason, the appeal was dismissed.

As a result, it was not necessary to address the issue of whether the definition of “accident” violated s. 15(1) of the Charter . This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 25 pages.

Nova Scotia Court of Appeal Citation: Dale v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2015 NSCA 71 Date: 20150724 Docket: CA 410753 Registry: Halifax Between: John Dale Appellant v. Nova Scotia Workers’ Compensation Appeals Tribunal, The Workers’ Compensation Board of Nova Scotia, The Attorney General for the Province of Nova Scotia and the Nova Scotia Department of Justice Respondents and Office of the Employer Advisor Nova Scotia Group Intervenor Judges: Beveridge, Farrar and Scanlan, JJ.A.

Appeal Heard: December 5, 2014, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Farrar, J.A.; Beveridge and Scanlan, JJ.A. concurring. Counsel: Kenneth H. LeBlanc and Stephen Lawlor, for the appellant Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Roderick (Rory) Rogers, Q.C. and Scott R. Campbell, for the respondent The Workers’ Compensation Board of Nova Scotia Edward A. Gores, Q.C., for the respondent, the Attorney General for the Province of Nova Scotia Sarah Bradfield, for the respondent Nova Scotia Department of Justice Bradley D.J.

Proctor and Katie Roebothan, for the Intervenor Reasons for judgment: Overview [ 1 ]

Section 2 (

a) of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10 (the Act ) defines the term accident for which a worker covered by the Act is entitled to compensation.

Section 2(

a) excludes claims for gradual onset stress (or chronic stress) as a compensable workplace injury. Mr. Dale says this exclusion discriminates against him on the basis of a disability, thereby infringing s. 15(1) of the Canadian Charter of Rights and Freedoms . [ 2 ] The Workers’ Compensation Appeals Tribunal (WCAT) rejected this argument. WCAT held, although the impugned provision draws a distinction on the basis of an enumerated ground of discrimination (disability), this distinction does not amount to discrimination because it does not create a disadvantage by perpetuating a prejudice or stereotype. [ 3 ] I would dismiss the appeal but for different reasons than WCAT.

Background [ 4 ] The appellant worked as a corrections officer at various facilities in Nova Scotia for thirty years. He went off work in February 2008. He received short-term disability benefits until June 2008. He then received long-term disability benefits until they were terminated in June 2010, at which time Mr. Dale retired. [ 5 ] Also in June 2010, the appellant made a claim for compensation under the Act . In his Accident Report, the appellant described his injury as follows: I was diagnosed with a sleep disorder about 12 years ago, anxiety attacks started about then also.

Over time being exposed to the stressful environment I suffer from a sleep disorder, can’t stay focused, irritable bowel disorder, panic attacks, nervous, memory loss, trouble reading, outbursts of anger, PTSD. [ 6 ] Mr. Dale’s initial claim was for post-traumatic stress disorder (PTSD) but he did not identify a traumatic event. On October 18, 2010, his claim was denied by a case manager.

He appealed the case manager’s decision to a hearing officer. [ 7 ] On May 18, 2011, the appellant’s claim was denied by a hearing officer on the basis that he had not suffered an “accident” as that word is defined in subsection 2 (

a) of the Act . [ 8 ] The hearing officer concluded that, while the appellant had advanced a stress-based claim, he had not suffered “an acute reaction to a traumatic event”. Rather, the appellant had developed stress over time. In her words: All three psychiatrists have excluded a formal diagnosis of PTSD. Psychologist Grant has diagnosed the Worker with this condition; however, I place greater weight on the psychiatrists’ opinions. I found the Worker to be an honest and forthright individual at the hearing.

It is clear that he spent many years of dedicated service in corrections institutions and performed that job in an exemplary manner (see performance appraisals on file). However, I am unable to find that this Worker has suffered an acute reaction to a traumatic event as is required under the Act in order to recognize a stress claim as compensable. The evidence in this case I find reveals the presence of a “gradually developing tapestry of stress related responses”. The legislators have seen fit to exclude gradual onset-type stress from compensability under the Act .

Conclusion After careful consideration, I find this Worker did not suffer a personal injury by accident arising out of and in the course of employment in the form of stress. Stress is only compensable under the Act if it presents as “an acute reaction to a traumatic event”. Such a presentation is not borne out by the evidence . Rather, the evidence reveals a “gradually developing tapestry of stress related responses”. Such gradually developed stress is not compensable. [Emphasis added] Appeal to WCAT [ 9 ] The appellant appealed the hearing officer’s decision to WCAT on two grounds: (

a) First, the appellant asserted that the hearing officer erred by concluding that his injuries did not arise from “an acute reaction to a traumatic event”. (

b) Second, and in the alternative, the appellant asserted that the statutory limitation of stress-based claims is unconstitutional insofar as it excludes claims for gradual onset stress as a compensable workplace injury. [ 10 ] The appeal proceeded in two stages before WCAT.

The first preliminary stage considered the appellant’s primary ground of appeal, namely, whether the hearing officer erred by concluding that the injuries did not arise from “an acute reaction to a traumatic event”. [ 11 ] On March 9, 2012, WCAT dismissed the first stage of the appeal and agreed with the hearing officer that the appellant’s injuries did not arise from “an acute reaction to a traumatic event” (WCAT #2011-359-PAD). I will refer to this as the “preliminary decision”. WCAT reasoned as follows: ...

The Panel is unable to draw any conclusion as to what, if any , particular incident caused the Worker to leave work when he did in 2008. ... The panel finds it more likely than not that the Worker left Burnside, not as a direct reaction to the Burnside event, but because of the stress involved in working in that environment and a desire to finish out his career at a smaller institution with less chaos and fewer inmates. This is consistent with his testimony and record as a whole. ...

The medical evidence before the Panel leads to the finding that the Worker’s symptoms were not caused by one incident in particular but to the series of upsetting events over the years, and the realities of work as a corrections officer. In short, the Panel is not persuaded that the Worker had any acute or delayed reaction to the Burnside event such that the symptoms resulting in his departure from work in 2008 could be considered to be in relation to that specific event.

While the evidence before the Panel supports a conclusion that the Worker’s psychological symptoms in 2008 were, at least in part, causally connected to his employment, it is unable to find the Worker suffered an acute reaction to a traumatic event pursuant to s. 2 (

a) of the Act .

CONCLUSION The Worker is unsuccessful on the preliminary issue before the Panel. He did not suffer an acute reaction to a traumatic event pursuant to s. 2 (

a) of the Act . These reasons are to be incorporated and shall form part of the final decision on this appeal . [Emphasis added] [ 12 ] Before the hearing officer and during the appeal of the preliminary issue before WCAT, Mr. Dale said he fell within the definition of s. 2 (

a) of the Act arguing he had suffered an acute reaction to a traumatic event as a result of a work incident that occurred at the Burnside jail in early 2002 when a number of inmates surrounded the cell he was in and threatened to push him over the railings on to the concrete floor 40 feet below. [ 13 ] Although WCAT stated that some of the appellant’s symptoms were “at least in part” causally connected to the workplace, it did not make an actual finding of connection between the workplace and any resulting disability. [ 14 ] The evidence noted other (work unrelated) stressors at material times over the years.

This included evidence about marital difficulties, the declining health of the appellant’s father, the appellant’s own physical health, and concerns about his children. Decision on Appeal [ 15 ] Because WCAT found that the appellant did not suffer “an acute reaction to a traumatic event”, it went on to consider the appellant’s alternative argument that the definition of “accident” is unconstitutionally under-inclusive. [ 16 ] After considering the written submissions on this constitutional ground of appeal, WCAT concluded that subsection 2 (

a) of the Act does not violate the right to equality as guaranteed by s. 15 of the Charter . WCAT’s reasons were released on December 6, 2012 (WCAT #2011-359-AD). I will refer to this as the Charter decision. [ 17 ] WCAT found that while the legislation draws a distinction on the basis of an enumerated ground (disability), this distinction did not amount to discrimination.

When considering the “contextual factors” and the “multiplicity of interests” WCAT concluded that the Nova Scotia Legislature drew appropriate and reasonable lines around compensation for stress-based injuries in the workplace. [ 18 ] As a result, WCAT dismissed the appeal. Leave to Appeal [ 19 ] On consent of the parties, this Court granted leave to appeal on June 19, 2014. [ 20 ] In the Notice of Appeal, filed on June 20, 2014, the single ground of appeal is articulated as follows: The ground of appeal is that the Tribunal erred on a question of law: (1) in finding that the definition of “accident” in

section 2 (

a) of the Workers’ Compensation Act , insofar as it does not include stress other than an acute reaction to a traumatic event, does not infringe subsection 15(1) of the Canadian Charter of Rights and Freedoms ? [ 21 ] The appellant seeks a declaration that subsection 2 (

a) of the Workers’ Compensation Act infringes subsection 15(1) of the Charter . He also asks that this Court direct WCAT to now determine whether the violation can be justified under

section 1 of the Charter given that the parties had agreed to address the

section 1 Charter issue only if required following determination of the appellant’s claim of a subsection 15(1) Charter breach. [ 22 ] The appeal hearing in this matter was heard on December 5, 2014. This Court requested further submissions on whether there was a factual foundation to allow WCAT to embark on the s. 15(1) analysis. Supplementary submissions were received in January of 2015. [ 23 ] As a result of the Court’s inquiry an additional issue arises on this appeal. Issues 1.

Does this case present a sufficient factual foundation for consideration of whether the definition of “accident” in the Act violates s. 15(1) of the Charter ? 2. If so, does the definition of “accident” insofar as it does not include stress other than an acute reaction to a traumatic event infringe s. 15(1) of the Charter ? Standard of Review [ 24 ] The issues raise constitutional issues of central importance to the legal system as a whole. As a result, the issues attract a correctness standard of review. ( Dunsmuir v. New Brunswick , 2008 SCC 9 , ¶58 and ¶60; Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , ¶26; Muggah v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2015 NSCA 63 , ¶18). Analysis

Issue #1 Does this case present a sufficient factual foundation for consideration of whether the definition of “accident” in theAct violates s. 15(1) of the Charter? [25] In my view, the appeal record here does not provide an adequate factual foundation to embark on the Charter inquiry. WCATdid not determine what Mr. Dale’s injury was, it did not decide whether his injury constituted disablement, and it did not determinewhether it arose out of or in the course of employment. Consequently, without making these findings of fact, it was premature forWCAT to determine whether the exclusion in s. 2(

a) of the Act infringed s. 15(1) of the Charter. [26] WCAT did not have adequate adjudicative facts nor sufficient legislative facts to undertake a Charter analysis and, as a result,neither does this Court. I will explain why. [27] Lorne Sossin in “Mootness, Ripeness and the Evolution of Justiciability”, in Todd L.

Archibald and Randall Scott Echlin,Annual Review of Civil Litigation 2012 (Toronto: Carswell, 2012), at p. 96 provides useful guidance on the principles to be applied whenconsidering whether there is an adequate factual foundation to permit a court to undertake a Charter analysis: Whereas speculative questions involve disputes which will only arise if certain facts occur, abstract or academic questions arise where adispute lacks a factual foundation altogether. The principle underlying this rule is that the adversarial system requires a factual dispute towhich the relevant law can be applied.

If there is no dispute, or if the relevant law cannot be so applied, the court should decline to hearthe matter. Scarce judicial resources should not be allocated to resolve questions in which the parties have no live interest. ... [28] Two Supreme Court of Canada cases on this issue – MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357(“MacKay”), and Danson v.

Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086 (“Danson”) – outline theprinciples and factors to consider in deciding whether a sufficient factual foundation has been established. [29] In MacKay and Danson, the Supreme Court refused to hear the appeals due to an inadequate factual foundation. In MacKay,Justice Cory noted (at pp. 361-62 and 366): ... In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeedto insist upon the careful preparation and presentation of a factual basis in most Charter cases.

The relevant facts put forward may covera wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of theimpugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts. Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitablyresult in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential toa proper consideration of Charter issues.

A respondent cannot, by simply consenting to dispense with the factual background, require orexpect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses ofenthusiastic counsel. * * * A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe theCharter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out.

Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants'position. [30] In Danson, Justice Sopinka for a unanimous Court, repeats the admonition about the importance of a factual foundation andhelpfully distinguishes between legislative and adjudicative facts (at p. 1099 and pp. 1100-01): This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of theCharter, particularly where the effects of impugned legislation are the subject of the attack.

For example, in R. v. Edwards Books andArt Ltd., (SCC), [1986] 2 S.C.R. 713, at pp. 767-68, this Court declined to hold that the Retail Business Holidays Act,R.S.O. 1980, c. 453, infringed the s. 2(

a) Charter rights of Hindus or Moslems in the absence of evidence about the details of theirrespective religious observance. Similarly, in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), (SCC),[1987] 2 S.C.R. 59, at p. 83, this Court declined to consider a s. 2(

b) Charter challenge to certain provisions of the Liquor Control Act,R.S.N.B. 1973, c. L-10, in the absence of evidence on the nature of the conduct that was claimed to constitute "expression" within themeaning of s. 2(b). It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and"legislative facts".

These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan,"Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern theimmediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent ...." Such facts are specific, andmust be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including itssocial, economic and cultural context.

Such facts are of a more general nature, and are subject to less stringent admissibilityrequirements: see e.g., Re Anti-Inflation Act, (SCC), [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re ResidentialTenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re UpperChurchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297, per McIntyre J., at p. 318. * * * This is not to say that such facts must be established in all Charter challenges. Each case must be considered on its own facts (or lack

thereof). As Beetz J. pointed out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R.110, at p. 133: There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finallysettled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass alaw imposing the beliefs of a state religion. Such a law would violate s. 2(

a) of the Canadian Charter of Rights and Freedoms, could notpossibly be saved under s. 1 of the Charter, and might perhaps be struck down right away; see Attorney General of Quebec v. QuebecAssociation of Protestant School Boards, (SCC), [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases areexceptional. [Emphasis added.] The unconstitutional purpose of Beetz J.'s hypothetical law is found on the face of the legislation, and requires no extraneous evidence toflesh it out. It is obvious that this is not one of those exceptional cases.

In general, any Charter challenge based upon allegations of theunconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence ofsuch evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred. [31] More recently, the Supreme Court of Canada in Kahkewistahaw First Nation v.

Taypotat, 2015 SCC 30 again discussed theimportance of an evidentiary foundation: [21] To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has adisproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. At the second stage of theanalysis, the specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing aclaimant’s historical position of disadvantage” will be relevant: Withler, at para. 38; Quebec v.

A, at para. 327. ... [24] In this case, however, there is virtually no evidence about the relationship between age, residency on a reserve, and educationlevels in the Kahkewistahaw First Nation to demonstrate the operation of such a “headwind”.

Nor is there any evidence about the effectof the education provisions on older community members, on community members who live on a reserve, or on individuals who belongto both of these groups. ... [34] I think intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put theKahkewistahaw First Nation to the burden of justifying a breach of s. 15 in its Kahkewistahaw Election Act, there must be enoughevidence to show a prima facie breach. While the evidentiary burden need not be onerous, the evidence must amount to more than a webof instinct.

The evidence before us, even in combination, does not rise to the level of demonstrating any relationship between age,residence on a reserve, and education among members of the Kahkewistahaw First Nation, let alone that arbitrary disadvantage resultsfrom the impugned provisions. [Emphasis added] [32] Finally, I refer to the Supreme Court of Canada decision in Martin v. Alberta (Workers’ Compensation Board), 2014 SCC25. In Martin, the Court was considering the definition of accident under s. 4 of the Government Employees Compensation Act,R.S.C. 1985, c. G-5 (GECA).

The definition of accident in GECA does not contain the same exclusion as the Nova Scotia Act relating toan acute reaction to a traumatic event. However, Alberta’s Workers’ Compensation Board passed a policy which identified four criteriawhich must be met in order to establish eligibility for compensation for chronic onset stress.

The third and fourth criteria require that thework-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in asimilar occupation and that there is an objective confirmation of those events. [33] The claimant in that case argued that the policy was inconsistent with GECA and it was unreasonable for Alberta to require aworker to establish the additional criteria. [34] The Supreme Court of Canada found that the

interpretation by the Alberta Board was reasonable. In the course of argument,although not challenging the policy under the Charter, the appellant asked that the court rely on Charter values to interpret the Act insuch a manner that it did not impose additional burdens on claimants for mental health injuries as compared to claimants for physicalinjuries.

When referring to the record the Court had this to say: [53] Finally, the appellant relied on the values in the Canadian Charter of Rights and Freedoms to argue that the definition of“accident” must be interpreted in a way that does not impose additional causality burdens on claimants for mental health injuries ascompared to claimants for physical injuries. However, the constitutionality of the provisions was not challenged before this Court. Forthis Court to make a determination based on Charter values would in effect be to decide a Charter challenge to the Policy without aproper record. [Emphasis added] [35] In

summary, these cases provide this Court with the following principles to assess whether there is an adequate factualfoundation for the Charter challenge to proceed: • Each case must be considered on its own facts (or lack thereof): Danson. • The question to answer is whether the appeal record provides sufficient facts to permit the Court to properly adjudicate theissues raised: Taypotat; Martin. • In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be

accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases has always avoided: Danson ; Martin . • Adjudicative facts are those that concern the immediate parties: "who did what, where, when, how and with what motive or intent ...." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context.

Such facts are of a more general nature, and are subject to less stringent admissibility requirements: Danson . The Workers’ Compensation Regime [ 36 ] With these principles in mind, I will return to the facts of this case. To be entitled to compensation, s. 10(1) of the Act states that WCB shall pay compensation for a personal injury by accident arising out of and in the course of employment: see Halifax (Regional Municipality) v. Hoelke , 2011 NSCA 96 , ¶19.

Hoelke also notes that “Essential to the consideration of whether a worker is entitled to compensation is whether his personal injury arose by accident.” (¶20). [ 37 ]

Section 2 (

a) of the Act is the impugned provision; it defines “accident” in the following inclusive terms: (a) “accident” includes (

i) a wilful and intentional act, not being the act of the worker claiming compensation, (ii) a chance event occasioned by a physical or natural cause, or (iii) disablement, including occupational disease, arising out of and in the course of employment, but does not include stress other than an acute reaction to a traumatic event; [ 38 ] Neither s. 2(a)(

i) nor (ii) are engaged on this appeal. Likewise, no party has submitted that Mr. Dale suffered from an occupational disease. [ 39 ] In Hoelke , this Court explained that a disablement is the cause of the injury: What HRM misses in its argument is that s. 2 (

a) of the Act sets out the mechanism of injury, how the injury occurred, not the result of the injury. Let me explain. In s. 2(a)(i), the cause of injury is a wilful or intentional act; in s. 2(a)(ii), the cause of injury is a chance event. Similarly, in s. 2 (a)(iii), disablement is the cause of injury; that is, an injury which occurs over a period of time rather than from a specific incident. ... (¶35) [ 40 ] As I will explain below, WCAT did not definitively identify Mr. Dale’s injury or condition.

WCAT issued inconsistent findings on the issue of whether there was a disablement and it never made a finding of fact that the injury arose out of and in the course of employment. The Two WCAT Decisions [ 41 ] As noted above, WCAT determined that the appeal would proceed in two stages. It issued its preliminary decision in March 2012 and its Charter decision in December 2012. [ 42 ] In its preliminary decision, WCAT made the following key findings of fact: • The Worker did not have an acute reaction to a particular event.

The evidence supports a conclusion that the Worker’s psychological symptoms arose, at least in part, as a result of the stresses of his employment, generally, which included a number of traumatic events over the years. • The issue before the Panel is whether or not these symptoms arose out of and in the course of employment in the sense that they constituted an acute reaction to a traumatic event as set out in s. 2 (

a) of the Act .

The Panel finds that it is more likely than not that the Worker’s symptoms did not constitute an acute reaction to the Burnside incident; rather the Worker’s psychological symptoms constituted a reaction to his years of stressful work in corrections, including all the incidents set out in the document titled “Sample of Traumatic Events”. • The Panel finds it more likely than not that the Worker left Burnside, not as a direct reaction to the Burnside event, but because of the stress involved in working in that environment and the desire to finish out his career in a smaller institution with less chaos and fewer inmates.

This is consistent with his testimony and the record as a whole. • The Panel finds that the medical symptoms … supports a finding that the Worker’s psychological symptoms in 2008 arose gradually as a result of the general stress of his job. • The medical evidence before the Panel leads to the finding that the Worker’s symptoms were not caused by one incident in particular but to the series of upsetting events over the years, and the realities of work as a corrections officer. • In short, the Panel is not persuaded that the Worker had any acute or delayed reaction to the Burnside event such that the symptoms resulting in his departure from work in 2008 could be considered to be in relation to that specific event.

While the evidence before the Panel supports a conclusion that the Worker’s psychological symptoms in 2008 were, at least in part, casually connected to his employment, it is unable to find that the Worker suffered an acute reaction to a traumatic event pursuant to s. 2 (

a) of the Act . • The Worker is unsuccessful on the preliminary issue before the Panel. He did not suffer an acute reaction a traumatic event pursuant to s. 2 (

a) of the Act . (pp. 3-13)

[ 43 ] However, in its appeal decision, WCAT made several other findings of fact that appear to be inconsistent with its preliminary appeal decision. Notably, WCAT stated the following: • The Panel has determined that the Worker’s claim is for gradual onset stress.

Therefore, the proper characterization of the Worker’s injury is that of a “disablement”. • The Worker is excluded from the definition of accident because he has a gradual onset mental disability. • For the purposes of this analysis, the Panel views the group to which the Worker belongs, as the group of workers who have a gradual onset stress-related psychological injury. • The Panel concludes, having reviewed the submissions and relevant authorities, that the purpose of the impugned provision was to exclude injuries not caused in or by the workplace. [ 44 ] As I will examine later, the inconsistencies between the findings of fact in WCAT’s decisions as well as the way that it structured its analysis creates many challenges. [ 45 ] Furthermore, the final sentence of the preliminary decision specifically notes “These reasons are to be incorporated and shall form part of the final decision on this appeal.” Thus, it appears that as far as WCAT is concerned, the preliminary decision and the Charter decision should be regarded as one decision rather than two.

This complicates matters even further. Flaws in WCAT’s Decisions and Procedure [ 46 ] With respect, there are at least three flaws with WCAT’s approach to Mr. Dale’s appeal. 1. Inconsistent Findings of Fact [ 47 ] WCAT’s preliminary decision never found that the worker was suffering from a disablement nor does its Charter decision. Its preliminary decision never makes findings of fact that the worker’s injury or condition is “gradual onset mental disability” or that he has “gradual onset stress”; its second decision makes both of these findings. [ 48 ] The preliminary decision found that Mr.

Dale left Burnside, not as a result of a disability but rather as a result of his desire to finish out his career in a smaller institution with less chaos and fewer inmates. In other words, stress did not cause him to leave the workplace. [ 49 ] In its Charter decision, it concluded that the purpose of the exclusion in the definition of accident was to exclude injuries not caused in or by the workplace.

It appears that the Panel is saying that gradual onset stress is not caused in or by the workplace - an obvious prerequisite for determining whether the legislation is discriminatory. [ 50 ] These inconsistencies create problems in terms of the factual foundation for the Charter challenge. Mr. Dale seeks to rely upon WCAT’s Charter decision as proof that WCAT found that he suffered from gradual onset stress and a disablement, whereas the employer and the Attorney General point to WCAT’s preliminary decision as not providing a factual foundation to embark on the Charter analysis.

This problem is further compounded by the fact that WCAT states that the reasons from the preliminary decision actually form part of the Charter decision. [ 51 ] There are three statements in WCAT’s Charter decision that are inconsistent with the preliminary decision: • The Panel has determined that the Worker’s claim is for gradual onset stress. Therefore, the proper characterization of the Worker’s injury is that of a “disablement”. • The Worker is excluded from the definition of accident because he has a gradual onset mental disability.

If he had a gradual onset physical disability he would not be so excluded. • For the purposes of this analysis, the Panel views the group to which the Worker belongs, as the group of workers who have a gradual onset stress-related psychological injury. [ 52 ] With respect to the first statement, WCAT never made a finding of fact in its preliminary decision that Mr. Dale suffered from a “disablement”. This is not a case, like Hoelke, supra , where there was a dispute about the cause of the injury (occupational disease vs. chance event vs. wilful and intentional act vs. disablement).

The appellant claims in his supplementary submissions that WCAT “confirmed its earlier finding, stating that Mr. Dale’s claim was properly characterized as a ‘disablement’ under the Workers’ Compensation Act .” With respect, WCAT made no “earlier finding” that Mr. Dale suffered from a disablement. [ 53 ] WCAT’s second statement is the most concerning. WCAT suggests that the appellant is only excluded from the definition of accident because he has a gradual onset mental disability. WCAT makes this statement, notwithstanding that the definition of accident under s. 2 (

a) of the Act requires Mr. Dale to be suffering from a disablement and that the disablement arose out of and in the course of employment, two findings of fact that WCAT never made. As noted above, when considering the purpose of the exclusion, its decision could be interpreted as concluding his disablement, even if one were found, was not caused by the workplace. [ 54 ] The second statement is taken from WCAT’s analysis on the first step of the s. 15(1) Charter analysis, namely, whether there is a distinction based on an enumerated or analogous ground.

In this narrow context, I have no difficulty with WCAT’s conclusion that Mr. Dale is excluded from the definition of accident because he has a gradual onset mental disability and that if he had a gradual onset physical disability, he would not be excluded. My concern is how WCAT framed the analysis in Mr. Dale’s case by omitting three key findings of fact that were necessary before it could even have embarked on a Charter analysis. Mr. Dale is, in fact, excluded from the

definition of accident in the Act for at least three other reasons:

i) WCAT never found that gradual onset stress constituted a “disablement”; ii) WCAT never found that Mr. Dale’s injury “arose out of and in the course of employment”; iii) The definition of accident excludes gradual onset stress. [ 55 ] The third statement – where WCAT is forced to specify the group into which it is placing Mr. Dale “for the purposes of [the second step of the s. 15(1) ] analysis” – indicates a further flaw in WCAT’s Charter analysis. Taken together with the second statement, where WCAT suggests that Mr.

Dale is only excluded from the definition of accident but for his “gradual onset mental disability”, it is possible to see the lengths to which WCAT must go to engineer the facts from its preliminary decision to fit its Charter analysis. Put another way, these supplementary findings of fact are only necessary because WCAT made no finding that Mr. Dale suffered from gradual onset stress before it embarked upon a Charter analysis. By the second step of WCAT’s s. 15(1) analysis, WCAT should not need to specify to which group Mr.

Dale belongs; it should be evident from the facts of the case. [ 56 ] Even if the preliminary decision and the Charter decision are considered one decision, this does not resolve the inconsistencies between the two decisions for two reasons. [ 57 ] First, even if WCAT’s reasons are regarded as one decision rather than two, the preponderance of facts found by WCAT in the preliminary decision contradict the three highlighted statements in the Charter decision.

In other words, reading the decisions together, WCAT’s reasons overwhelmingly indicate that it did not reach a conclusion on personal injury, disablement and whether the injury arose out of and in the course of employment. [ 58 ] Second, it is the facts found in the preliminary decision that must provide a sufficient basis to permit the Charter challenge to proceed. As I will explain, it is the absence of these facts that is problematic. 2. Lack of Factual Foundation [ 59 ] As noted, WCAT did not make three critical findings at the first stage that were necessary for it to proceed to the second stage.

I agree with the Attorney General’s supplementary submissions that WCAT did not find at the first stage that: (

a) the worker suffered from an “injury ” under the Act ; or, (

b) the worker suffered an injury arising out of and in the course of his employment . To this, I would add that WCAT did not find at the first stage that the worker suffered from a disablement , but for the stress exclusion. [ 60 ] With respect to the injury, WCAT found in its first decision that Mr. Dale “was experiencing symptoms of a psychological nature in 2008”, and that “the Worker’s psychological symptoms in 2008 arose gradually as a result of the general stress of his job”(Preliminary Decision, p. 10). WCAT declined to make a finding of PTSD (Preliminary Decision, p. 10).

Thus, it appears that the “injury” may be Mr. Dale’s “psychological symptoms” but WCAT never specified this in its preliminary decision. Mr. Dale’s submissions before WCAT appear to assume that it was not a fact in dispute that Mr. Dale is injured.

However, the employer in its supplementary submissions points out this is not the case: ...it appears to have now been assumed by the Appellant that it is known and accepted that he is disabled, his disability is a mental illness, and his disability arises out of and in the course of his employment such that he would be accepted for workers compensation benefits if not excluded by the workings of

Section 2(a). The Employer has never conceded these elements. ... [ 61 ] Furthermore, WCAT never found in its preliminary decision that Mr. Dale’s injury or condition or his psychological symptoms amounted to a disablement, as defined by this Court in Hoelke , supra . As the Office of the Employer Advisor puts it in its supplementary submissions: [T]here was insufficient evidence before the WCAT to draw the conclusion that the symptoms of stress suffered by the Appellant constituted a disability.

Although the Appellant suffered symptoms which included sleep disturbance, burnout, irritability, poor concentration and inability to cope with stress, these symptoms do not constitute a medical disability or disorder. ... ** * Without a finding of disablement, the Appellant’s claim would not have been accepted as an accident under s. 2 (

a) even if there was no exclusion with respect to workplace stress. Without a finding of disablement, there is no link between the exclusion of gradual onset stress under s. 2(

a) of the Act and the denial of the Appellant’s claim. [ 62 ] Moreover, WCAT never makes a clear finding of fact that Mr. Dale suffered an injury arising out of and in the course of employment. Instead, WCAT puts this finding in doubt by saying “the evidence before the Panel supports a conclusion that the Worker’s psychological symptoms in 2008 were, at least in part, causally connected to his employment ... [my emphasis in italics].” (Preliminary Decision, p. 13). [ 63 ] If WCAT was not prepared, on the facts before it, to make a finding that Mr. Dale was disabled and that his claim arose out of

and in the course of employment, then, with respect, the Charter analysis was moot. Put another way, Mr. Dale was only challenging the constitutionality of the phrase, “acute reaction to a traumatic event”, in the definition of accident. He was still required to prove all the other elements of accident, including that his claim arose out of and in the course of employment. [ 64 ] It is also helpful to look at the adjudicative and legislative facts before WCAT and before this Court. In terms of adjudicative facts, this Court has the testimony of Mr. Dale and Ms.

Grant, his psychologist, in addition to the significant medical evidence on file and findings of fact made by the WCB and WCAT in decisions regarding Mr. Dale based on that evidence. [ 65 ] Neither WCAT nor this Court was presented with any legislative or social facts. Instead, counsel for Mr. Dale, before WCAT and before this Court, sought to rely upon court decisions. In particular, counsel relied upon the Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v.

Laseur , 2003 SCC 54 ; a decision of Cromwell J.A. (as he then was) in Logan v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2006 NSCA 88 (specifically ¶52-54), regarding the legislative purpose of s. 2 (

a) of the Act , the British Columbia Court of Appeal decision in Plesner v. British Columbia (Hydro and Power Authority) , 2009 BCCA 188 , as well as two decisions of the Ontario Workplace Safety and Insurance Appeals Tribunal (OWSIAT): Decision No. 2157/09I , 2010 ONSWIAT 2729, and Decision No. 2157/09 , 2014 ONWSIAT 938 ). [ 66 ] The appellant filed no additional evidence with respect to his s. 15 Charter claim before WCAT or this Court. In April 2012, then-counsel for the appellant indicated “There is no further physical or viva voce evidence anticipated”.

This position did not change in spite of a letter that WCAT sent on May 7, 2012 where it reminded all parties: “It is important that the evidentiary record be developed before the Tribunal.” [ 67 ] The WCB in its supplementary submissions submits there is no factual vacuum even though WCAT has not made an ultimate finding that the appellant would otherwise be entitled to compensation but for the impugned definition of accident.

The WCB points to the “abundance of adjudicative evidence on the record” and suggests that it is unlikely that any further evidence would or could be presented in support of the appellant’s claim for compensation. The WCB suggests that the only thing missing is a WCAT finding that the impugned definition of “accident” is the sole barrier to compensation. [ 68 ] Respectfully, it does not appear that WCAT found that the adjudicative evidence on file was sufficient to support Mr. Dale’s claim. I would also question whether there is an “abundance” of adjudicative evidence.

The evidence is almost exclusively medical evidence; the appellant provided no other evidence to support his claim. Despite the medical evidence, WCAT could not or would not make the necessary factual findings. [ 69 ] The lack of evidence is fatal to the s. 15(1) claim. WCAT commented on this lack of evidence: The Panel does not find that the Worker’s human dignity has been affronted because he does not qualify for workers’ compensation benefits. The provision does not perpetuate any assumption that the Worker’s disability is not a real one.

The Worker has not provided a viable argument or evidence that the group to which he belongs has experienced any pre-existing disadvantage, vulnerability, stereotyping, or prejudice . The Panel concludes that s. 2 (

a) of the Act does not perpetuate stereotyping on the basis that the workers in question have a psychological disability of gradual onset. [Emphasis added] [ 70 ] Apparently, unlike the appellant, both the Attorney General and the employer were well aware that the lack of evidence put forward by the appellant on this issue could be fatal.

The Attorney General notes in her factum to this Court: The Appellant has not advanced sufficient, or any, evidence of meeting the onus that persons suffering stress injuries which are “other than an acute reaction to a traumatic event” are stereotyped, stigmatized or disadvantaged by society. There is no basis to suggest that those who do not meet the acute reaction to a traumatic event definition are stereotyped, stigmatized or disadvantaged by society on the basis that they have stress or disability.

Without such stereotyping, or stigmatization, the Appellant’s human dignity under s. 15(1) is not violated and there can be no discriminatory distinction drawn by s. 2 (

a) of the Act : see, e.g., Hartling v. Nova Scotia [2009 NSCA 130], at paras. 49-52. [ 71 ] Similarly, the employer states in its factum and in its supplementary submissions: ... [T]he Worker Appellant has not put forward any evidence of disadvantage sufficient to amount to discrimination once one considers the full context of the legislation.

The Worker Appellant has not put forward any evidence to support its position on the Charter analysis but has relied entirely on determinations made by a panel in another jurisdiction [referring to OWSIAT], a panel which did have the benefit of evidence on point. * * * There has been no evidence relating to any violation of human dignity, either on the part of the Appellant or others who have had their WCB claim rejected. There is no evidence of a prejudicial attitude within society towards individuals suffering the psychological symptoms of stress. It remains unknown what stereotype may be said to exist.

The complete absence of evidence as to the alleged effects of the legislation creates the unacceptable vacuum to be averted. [ 72 ] The employer and the Attorney General also rely upon this Court’s decision in Hartling v. Nova Scotia (Attorney General) , 2009 NSCA 130 , for the proposition that there must be an adequate factual foundation. In that case, Chief Justice MacDonald, for a unanimous Court, refused to adjudicate the claimant’s s. 15 Charter challenge. Ms.

McKinnon framed the challenge by including herself in a group of would-be plaintiffs whose injuries are not “physical in nature” and the more advantageous comparator group was would-be plaintiffs whose injuries are physical in nature. However, the trial judge made an “immutable” finding of fact that the claimant’s injuries were physical in nature and thus, she could not bring herself within the claimant group and so there was no “evidentiary basis to buttress any

section 15 claim.” (¶130-134)

[73] The appellant and WCB also submit that under R. v. Mills, (SCC), [1999] 3 S.C.R. 668 a determination thatthe legislation at issue in this appeal is unconstitutional in its general effect involves an assessment of the effects of the legislation underreasonable hypothetical circumstances. [74] There are two challenges for Mr. Dale with respect to his argument that he is advancing this claim not only on his own behalfbut on behalf of other claimants with gradual stress claims.

First, it would appear contrary to Hartling, supra, where this Court refusedthe claimant’s invitation to consider the constitutionality of the impugned provision in that case “if not on her behalf, then on behalf ofother would-be plaintiffs whose injuries are purely ‘mental’ as opposed to ‘physical’ in nature.” (¶133) Given that WCAT did not makethe necessary findings of fact, the appellant is asking this Court to make a similar determination on behalf of other would-be workers’compensation claimants who may have a claim for gradual onset stress.

Moreover, the s. 15(1) analysis under Withler still requires theappellant to adduce evidence to show a violation of human dignity. This evidentiary black hole does not somehow disappear if theappellant is advancing a claim on behalf of other hypothetical claimants. Furthermore, it is far from clear how the appellant could showhow the human dignity of a hypothetical person could be violated. [75] Finally, the appellant relies upon the Supreme Court of Canada’s decision in Martin and Laseur, supra, where the SupremeCourt not only adjudicated Mr. Martin’s claim but also Ms. Laseur’s claim.

The appellant suggests that although the Supreme Courtheard Ms. Laseur’s case, it was not clear that she would receive compensation and that the different results for Mr. Martin and Ms.Laseur “reflected their different factual circumstances” such that “the relative uncertainty in Ms. Laseur’s case, compared to Mr.Martin’s case, did not pose a problem for the Court’s Charter analysis”. [76] In Ms. Laseur’s case, WCAT found that she suffered from chronic pain and that her chronic pain was related to a workplaceinjury, but her entitlement to benefits was precluded by s. 227 of the Act.

This is because the date of her injury mandates, pursuant to s.227, assessment under the PMI Guidelines and the PMI Guidelines assigned a PMI rating of zero per cent, meaning Ms. Laseur was notentitled to benefits. Put another way, WCAT found: “no worker injured prior to March 23, 1990 who has developed chronic pain can beawarded permanent benefits, since their injury is incapable of measurement in accordance with the PMI Guidelines”. Since Ms. Laseurhad not challenged the constitutionality of s. 227 of the Act, the Supreme Court remitted Ms. Laseur’s claim back to the WCB with anoption for Ms.

Laseur to challenge the constitutionality of the Guidelines. [77] With respect, there is a fundamental difference between Ms. Laseur’s case and this one. In the former, WCAT made clearfindings of fact that Ms. Laseur suffered from chronic pain and the medical evidence on file was consistent in attributing the pain to herwork injury. This clearly distinguishes her circumstances from those of Mr. Dale where WCAT never determined that he suffered fromgradual onset stress, that the stress was related to a workplace injury or that the injury arose out of and in the course of employment.

Had WCAT made those findings, I would not object to WCAT proceeding with a Charter analysis just as WCAT and the courtsadjudicated Ms. Laseur’s claim notwithstanding the uncertainty about her overall entitlement to benefits due to s. 227 of the Act. 3. WCAT’s Procedure [78] WCAT decided to bifurcate the appeal in two stages. At the first stage, WCAT properly focused on whether Mr. Dale suffereda personal injury by accident arising out of and in the course of employment in the form of an acute reaction to a traumatic event. On thefacts before it, WCAT’s conclusion that Mr.

Dale did not suffer an acute reaction to a traumatic event is unimpeachable but it concludedits analysis after making this finding. With respect, this was an error. [79] If WCAT ruled against Mr. Dale at the first stage, it was aware that Mr. Dale wanted to argue at the second stage that the stressexclusion in s. 2(

a) of the Act breached s. 15 of the Charter. Therefore, having found that there was no acute reaction to a traumaticevent, it needed to go on to make the three critical findings above in order to embark on the Charter analysis. As previously reviewed,WCAT should have gone on to consider:

i) did Mr. Dale suffer an injury that amounted to a disablement? ii) did the injury arise out ofand in the course of employment? and, iii) but for the definition of accident restricting stress claims to an acute reaction to a traumaticevent under s. 2(

a) of the Act would Mr. Dale have been entitled to benefits? [80] WCAT should have proceeded as follows and determined: (

a) whether Mr. Dale’s claim was entitled to compensation under s. 2(

a) of the Act as being an acute reaction to a traumatic event and, ifso, whether this claim was statute-barred by s. 83 of the Act (the limitation issue was raised by the employer at the preliminary appealand deferred by WCAT); and, (

b) in the event that

a) was answered in the negative, whether “but for” the stress exclusion, Mr. Dale’s claim was otherwisecompensable under s. 2(

a) of the Act. This would have required WCAT to determine that Mr. Dale was suffering from gradual onsetstress, the stress constituted a disablement and it arose out of and in the course of employment. [81] WCAT could then have conducted its Charter analysis, either both s. 15 and s. 1 at the same time or bifurcated the analysisinto two separate decisions. As noted above, if WCAT then found a breach of s. 15(1) of the Charter was not saved by s. 1, theapplication of s. 83 of the Act would have remained an outstanding issue in the adjudication of a gradual onset stress claim.

Other Submissions [82] In its factum, the WCB makes several other arguments about why there is an adequate factual foundation for this Court to hearthe appeal. The WCB suggests that the infringement allegedly pertains to legislation that has been in force for many years and affectsthe rights of the appellant and all those in circumstances of gradual onset stress. As a result, the appellant does not have access to theregime and is, therefore, not entitled to make a case for compensation on the merits. [83] There are two answers to this submission. First, I agree that it is not Mr.

Dale’s fault that WCAT did not conduct a ‘but for’analysis or make the necessary factual findings to enable it to undertake a Charter analysis. All parties before WCAT agreed to the two-step process and after the preliminary appeal decision was made, counsel automatically proceeded to the second stage. All counselappear to have assumed either that Mr. Dale had satisfied the necessary elements on the facts or that this issue could be resolved later. No

one appears to have turned their mind to whether Mr. Dale even had standing to make the Charter challenge in light of the fact that WCAT had not yet determined his entitlement to workers’ compensation benefits but for the stress exclusion. [ 84 ] Second, this Court is being asked to make a decision on the basis of a very slim record – which WCAT did not find supported that Mr. Dale suffered from a disablement – and with a paucity of legislative and social evidence.

As all parties acknowledge, the issue of entitlement to workers’ compensation for gradual onset stress is one of significant importance to many workers and the WCB. This Court should be loath to embark on this analysis and issue a binding decision on the merits of such a challenge in the absence of a factual foundation for such a challenge and with such a lack of evidence. [ 85 ] The WCB states that if the Court of Appeal refuses to entertain the Charter challenge on the basis of prematurity, this would suggest that the WCAT must always and comprehensively engage in alternative reasoning.

The WCB submits that WCAT did not need to conduct an assessment of entitlement to compensation in this . It says WCAT was attempting to be practical and efficient in its approach, which should not be discouraged. [ 86 ] I respectfully disagree; it was premature for WCAT to address the issue in the absence of any factual foundation. Moreover, no one is suggesting that WCAT need engage in alternative reasoning in every case. It need only engage in alternative reasoning where a constitutional question is raised to ensure that it does not embark on an unnecessary constitutional odyssey by engaging in hypotheticals.

At the risk of being repetitious, for a claim under s. 2(a), WCAT must determine that the worker has sustained a personal injury, that his injury amounted to a disablement and that the injury arose out of and in the course of employment and that but for the definition of accident, the worker would otherwise be entitled to compensation.

WCAT established this critical factual foundation in other workers’ compensation cases, notwithstanding that the claim was non-compensable, but did not do so in this case. [ 87 ] Finally, the WCB submits that the parties have already expended considerable time and resources on the Charter issue. This is unfortunate.

However, the time and resources expended by counsel cannot be allowed to trump an inadequate record. [ 88 ] I find that the appeal record does not provide sufficient facts to permit this Court to properly adjudicate the issues raised. [ 89 ] As a result of my conclusions under this issue, I would dismiss the appeal.

Issue 2 If so, does the definition of “accident” insofar as it does not include stress other than an acute reaction to a traumatic event infringe s. 15(1) of the Charter ? [ 90 ] It is apparent from my conclusion under Issue #1 that the factual basis to embark on the Charter analysis does not exist and, therefore, I need not address this issue. Conclusion [ 91 ] The appeal is dismissed without costs to any party. Farrar, J.A. Concurred in: Beveridge, J.A. Scanlan, J.A.