MOOSE JAW — Former police officer Jason Mercer saw death in many forms — natural, accidents, suicides, homicides, unexplained — during his 18-year career and became so good at dealing with bereaved families that his colleagues nicknamed him “Captain Death.”
All those incidents gave him post-traumatic stress disorder (PTSD), along with anxiety, panic attacks and depression, which eventually led him to commit suicide on March 23, 2016.
However, the Saskatchewan Workers’ Compensation Board (WCB) ruled that Mercer’s mental illness and suicide were linked to his personal and family issues — even though Police Chief Rick Bourassa and a medical doctor provided evidence to the contrary.
In prior years, Mercer also told his wife that he was experiencing PTSD symptoms and wrote down those comments in a journal.
The WCB’s denial meant Mercer’s wife and three sons were ineligible for his WCB benefits. His wife attempted to have the decision reversed several times — including through the WCB’s Appeal Board — but was unsuccessful.
So, the family submitted a judicial review application to the Saskatchewan Court of Queen’s Bench, arguing the WCB’s previous considerations of Mercer’s situation failed to accept his PTSD.
In a Jan. 11 decision, Justice Richard Danyliuk quashed the Appeal Board’s finding. (The decision can be read on the CANLII site.) He then ordered the board to reconsider its verdict based upon provincial legislation and the case’s facts, with further evidence included if required.
“I agree that in these circumstances, this (quashing the verdict) is the appropriate remedy,” he said in his 42-page decision.
In his decision, Justice Danyliuk noted that the Mercer estate argued that the “applicable standard of review is reasonableness” and pointed to several aspects of the Appeal Board’s decision as unreasonable.
The judge based his analysis on four issues:
- What is the appropriate standard of review to apply to the family’s application?
- What is the applicable legislative framework and how does it operate?
- Was the Appeal Board’s decision unreasonable?
Standard of review
Danyliuk referred to a case from the Supreme Court of Canada that looked at the standard of review. The court’s majority decision, he said, set a new course to determine applicable review standards and provided guidance about the methodology for reviewing judges to use where the well-chosen standard is reasonableness.
“I reiterated that the standard of review applicable to the within application is the reasonableness standard,” he said.
An applicable framework
The important statute in this matter is The Workers’ Compensation Act, 2013 — specifically section 23 — which allows the board to provide insurance to employers and benefits to workers injured on the job, the judge said.
Meanwhile, in 2016 the Saskatchewan Legislature updated the Act to include section 28.1, which focused on psychological injuries and workers who experienced a traumatic event.
“The term ‘traumatic event’ … is not defined. Still, s.28.1 creates a presumption in the worker’s favour which cannot be ignored,” the justice said. “It is for the opposing party to show that the injury was not one that arose out of and in the course of the claimant’s employment.”
Justice Danyliuk criticized the WCB’s policy and procedure manual, saying it departed from the legislation in its definition and application of the statutory presumption. The document also said that psychological injuries must meet four criteria before they are considered workplace injuries.
“… these requirements in the manual exceed (or at least were different than) those in the legislation or regulations. In other words, WCB is trying to hold claimants to a higher standard than the law actually holds them to … depriving the worker of the benefit of the statutory presumption,” he added.
An unreasonable decision
Danyliuk then looked at whether the Appeal Board’s decision was unreasonable, especially considering sections 23 and 28.1 of the Act. He ruled that the board’s decision and reasons “were unreasonable.”
“The essence of s.28.1 is the presumption. Where the evidence establishes the worker sustained a psychological injury (i.e. a diagnosis is made) and it is shown the worker sustained exposure to traumatic events, then WCB is to presume it arose out of and in the course of that worker’s employment,” he said. “… It afforded primacy to and applied the manual, as opposed to the Act or Regulations.”
Mercer met the criteria to receive benefits under the Act since he was a worker and a psychiatrist or psychologist diagnosed him with PTSD before his death, the judge continued. The Appeal Board also had plenty of information to show Mercer experienced workplace stress and trauma.
“… there was significant evidence of workplace stress and trauma that the Appeal Board failed to deal with in any proper way,” he added.
Danyliuk added that the Mercer estate was entitled to reimbursement for its Queen’s Bench application.
