New trend in case law emerges dealing with work-related psychological trauma

“At some point, the Quebec Appeal Court is going to have to rule to bring things into line because we’re into something new,” said Marie-Michelle Savard, a labour lawyer with Verreau Dufresne Avocats. “This issue is increasingly brought before the courts, and the courts will have no choice but to be more attentive and to evolve in the way they deal with these situations. But the consequences are so serious that it’s ultimately going to require the intervention of higher courts.”

Labour law professor Finn Makela of the Université de Sherbrooke believes that the new jurisprudential trend is “a sign of the times” and “makes a lot of sense” as it mirrors a general shift in society towards mental health issues over the past two decades. The shame that used to accompany mental health issues is receding, and it is now increasingly normalized as a medical condition, added Makela, whose first academic paper was on the indemnification of psychological harassment victims.

“So in that sense, it’s unsurprising to me that a shift in society is reflected by a shift in how it’s treated in the law,” said Makela. “But it’ll be interesting to see how this (new case law) trend develops. I anticipate that there’ll be some kind of fine-tuning over this over the next months or years, and if there isn’t some sort of consensus that develops at the Administrative Labour Tribunal, eventually the higher courts are going to have to rule on it.”

In Quebec, there are two pathways to make a claim for mental injury, both of which are governed by the Act respecting industrial accidents and occupational diseases (Act). The first involves making a claim that alleges that the psychological trauma is an occupational disease. Under article 30 of the Act, it must be shown that the illness is characteristic of the work performed or that it is directly related to the specific risks of that work.

“That’s pretty well a non-starter because you have to demonstrate that it’s a risk inherent to your occupation or your workplace that is different from the risks of everyday life in other industries, and when it comes to things like psychological stress or harassment, there’s no specific difference between industries,” explained Makela.

The other track that can be used under the Act is alleging that the mental injury ensued from an accident. Under the Act, however, three elements need to be proven for it to be considered to be a workplace accident: that it was a “sudden and unforeseen” event, attributable to any cause, arising out of or in the course of work which resulted in an employment injury. But the Act does not define what constitutes a “sudden and unforeseen” event. Over the years, jurisprudence fostered the notion that psychological trauma could surface not merely from a single event, as is normally the case with physical injury, but rather from a series of events which, taken in isolation, may be benign or trivial, but taken as a whole by their supposition or juxtaposition, are “sudden and unforeseen” within the meaning of the Act, noted Makela. But even then, it was difficult for workers to be indemnified because of floodgate concerns, added Makela.

On top of that, in spite of the evolving jurisprudence, it was still a challenge for workers to demonstrate that the cause of the alleged mental injury stemmed from a “sudden and unforeseen” series of events or circumstances that were objectively traumatic, said Savard. Work-related psychological injuries were difficult to prove because the burden of proof that was required was similar to physical injuries, added Savard.

Decision set the tone

That is now changing, following a decision issued last year in Preure et Centre de services scolaire de Montréal, 2022 QCTAT 253. The adjudicator, Philippe Bouvier, held that requiring proof of a psychological injury be based on circumstances that are objectively traumatic “distorts” the notion of “sudden and unforeseen event” and places a higher burden of proof on the worker than that of a balance of probabilities. Bouvier held that when it comes to workplace psychological injuries, the notion of sudden and unforeseen event or events “lies in the singularity of the situations” experienced by the worker in their work environment. But, added Bouvier, this singularity of the circumstances or events evoked by the worker must be assessed by taking into account the nature of the work environment and its “particularities,” a change in behaviours, the appearance of new behaviours affecting the worker, or the modification or development of new professional, behavioural or disciplinary requirements targeting the worker.

Bouvier acknowledges that there remains a certain amount of subjectivity involved in the exercise due to the challenges to “objectify” the nature of mental injuries. He likened it to challenges faced by adjudicators when assessing the credibility of the worker and the plausibility of his testimony in workplace physical injury cases. Since Bouvier’s ruling, more than half a dozen decisions have more or less followed suit.

But the notion of “singularity of situations” is ambiguous, and adjudicators will still have to objectively appraise elements such as workplace attributes, assess behavioural changes and evaluate new job requirements, said Savard.

“Each person, each way of working, everything is different, everything is particular, but adjudicators will have to try to make it as uniform as possible,” said Savard. “The notion of objectivity remains” to determine what consists of a “sudden and unforeseen” event. Just because, added Savard, a supervisor imposes greater workplace demands does not necessarily entail that a worker was faced with a “sudden and unforeseen” event that led to a mental injury.

Makela expects adjudicators will be at odds over the interpretation given to this notion of singularity because they will have to examine, for instance, the workplace and then determine, for instance, if a new situation is “sudden and unforeseen.”

“It’s not as revolutionary as it might sound at first because it doesn’t completely eliminate this notion of the traumatic nature of the event,” said Makela. “It’s not like it’s an open bar. It adds a certain amount of conceptual clarity to the analysis. The depth at which the burden has to be met has been moved over to the causality analysis, the third step of the analysis, rather than up front.”

In spite of the new challenges that will surface following the Bouvier decision, Savard believes that adjudicators will generally adhere to the new trend in case law dealing with work-related psychological trauma.

“It responds to the way society is evolving at the moment,” remarked Savard. “It’s more consistent with what constitutes a psychological injury. It also ties in well with what constitutes psychological harassment within the meaning of the Act respecting labour standards where there is an aspect of subjectivity that has been incorporated into decisions for several years now. So it’s consistent with various actions that have been taken by both the courts and legislators in their desire to be more attentive to the needs of workers and their health problems today.”

This story was originally published in Law360 Canada.