Policy overturned
Plesner brought an application for judicial review. The reviewing judge allowed the application for judicial review on the basis that the reasons and findings of WCAT were inconsistent.

The reviewing judge declined to issue a ruling on Plesner’s argument that section 5.1(1)(a) of the act and Policy Item no.13.30 discriminated against him on the basis of mental disability contrary to his rights under section 15 of the Charter.

Plesner appealed, arguing that the WCB regime treated physically and mentally injured workers differently by limiting compensation for mentally injured workers to situations where the mental injury arose out of a sudden and traumatic event. 

Applying the test developed by the Supreme Court of Canada in its decision in Law v. Canada (Minister of Employment and Immigration), the B.C. Court of Appeal held that the traumatic event requirement in section 5.1(1)(a) of the act when read together with Policy Item no.13.30 violated section 15 of the Charter by discriminating against claimants on the basis of mental disability.

The Law test requires the party alleging a breach of section 15 of the Charter to identify an appropriate comparator group and, by comparing his or her treatment to that group, establish that: 1) the law makes a formal distinction between the claimant and others; 2) the differential treatment is on the basis of an enumerated or analogous ground; and, 3) the differential treatment discriminates in a substantive sense.

The court identified “workers who suffered physical injuries arising out of and in the course of their employment” as the appropriate comparator group to determine whether Plesner had suffered discriminatory treatment. The court found that Plesner was subject to differential treatment because workers who suffer physical injuries are only required to prove that their injury was work-related to receive workers’ compensation benefits, while those who suffer mental injuries are required to prove that their injury was work-related and that it was an acute reaction to a sudden and unexpected traumatic event.   

Applying the four contextual factors established in Law, the court held that this differential treatment was substantive discrimination that demeaned Plesner’s human dignity as follows. 
First, the court stated that individuals suffering from mental disability are subject to pre-existing disadvantage and are stigmatized in our society.

Second, the reduced access to compensation did not correspond to the actual needs, capacity and circumstances of individuals with mental injuries.

Third, while the challenged provisions reduced costs, these savings were not an ameliorative purpose.

And fourth, Policy Item no. 13.30 treated those suffering from mental injuries as less deserving of compensation than those with physical injuries.

Accordingly, the court found that section 15 of the Charter had been violated.

The Court held that section 5.1(1)(a) of the act and Policy Item no. 13.30 were not justifiable as a reasonable limit under section 1 of the Charter. Financial considerations and the problem of causation created by mental stress claims were found to be insufficiently pressing and substantial objectives, given the circumstances. In order to remedy the breach, the Court severed the sections of Policy Item no. 13.30 which define and describe “traumatic event”.