Decision No. 240/22I: Finding discretion in a statutory "must"

  • April 14, 2023
  • Kira Clarke

INTRODUCTION

This interim decision of the Workplace Safety and Insurance Appeal Tribunal (the “Tribunal”), issued January 10, 2023, discusses principles of statutory interpretation with reference to the time limit under subsection 13.1(5) of the Workplace Safety and Insurance Act, 1997[1] (the “Act”). In the September 21, 2020 decision under appeal by the worker, the Appeals Resolution Officer (“ARO”) found that the worker had failed to meet the legislative requirements of the transitional provisions to file her chronic mental stress claim on or before July 1, 2018. In the appeal heard before Vice-Chair M.F. Keil, the worker sought a finding that her claim could proceed on the merits and was not barred by the statutory limitation. As a result, the Tribunal was called upon to addresses whether the “must” requirement of the limitation imposed pursuant to section 13.1(5) of the Act was mandatory or directory in nature.

BACKGROUND

In February of 2006, the worker began employment as a senior advisor with the accident employer in this claim. The worker alleges that she was subject to bullying and harassment of a sexist and misogynist nature which was an inherent feature of the organizational culture. On September 20, 2017, the worker was diagnosed with major depression and an anxiety disorder arising from workplace stress.

The worker stopped working on September 21, 2017 as a result of the gradual onset of her mental stress disability. The worker initially filed for short term disability benefits but was directed by the insurer to submit her claim to the Workplace Safety and Insurance Board (the “Board”). As a result, the worker’s family physician filed a Form 8 on July 5, 2018. In its Form 7 filed on July 6, 2018, the accident employer confirmed that the worker had been off work since September 21, 2017 but contended that they had not become aware of the work-relatedness of the absence until July 3, 2018. On July 9, 2018, the worker filed her Form 6 indicating that the accident employer was aware of the reasons for her going off work as of the fall of 2017 and took no steps to properly address the matter.

The Board Case Manager denied the worker’s claim in a decision dated March 8, 2019, indicating that the claim had not been filed within the applicable time limits and further, that the allegations of workplace bullying and harassment were not substantiated. In the September 21, 2020 decision under appeal, the ARO agreed that the worker had failed to file her chronic mental stress claim on or before July 1, 2018, as required pursuant to subsection 13.1(2) of the Act[2]. As a result, he found the worker was out of time and made no decision on the merits of the claim.

In appealing the ARO’s decision, the worker sought a finding that her claim was not barred by virtue of the legislation and could proceed on the merits.