Pickering v. Richmond School District No. 38 – (ongoing)

Published Categorized as Notable Decisions

Recently, the B.C. Supreme Court upheld a WCAT decision which denied the worker’s bullying and harassment claim. Now, that worker, together with the Community Legal Aid Society (CLAS), has launched a challenge to section 135 of the Worker’s Compensation Act (“Act”) as being discriminatory under the Canadian Charter of Rights and Freedoms (“Charter”). 

The worker argues that the Act discriminates against psychological injuries, compared to physical injuries, in that it enacts: 

  •  a higher causation test before psychological injuries are accepted as compensable (the “predominant cause test”), and
  • An exclusion for psychological injuries which result from most decisions by the employer related to the worker’s employment (the “labour relations exclusion”).


The worker suffered a psychological injury when he was bullied and harassed at work. The Board denied his claim under section 135 of the Act.

On appeal, WCAT accepted that the worker was bullied and harassed. However, it also concluded that the predominant cause of his injury was the employer’s response (or non-response) to the harassment. Since the employer’s response (non-response) a “decision” under s. 135, the worker was denied benefits under the labour relations exclusion. WCAT A1802933 (April 5, 2019) 

On judicial review, the court upheld the WCAT decision on the basis that it was reasonable, given the current state of the law. 2021 BCSC 1497 (September 23, 2023). 

Current Charter challenge:

It is now clear that the legislation – section 135 of the Act – is the problem. 

 No physical injury claims are subjected to the onerous “predominant cause test”. For physical injuries, work does not have to be the sole cause, or even the most important cause. Physical injuries are compensable if work was a significant contributing factor. 

And no physical claims are precluded simply because the injury was caused by a decision made by the worker’s employer, especially when the employer makes bad decisions, like failing to respond to bullying and harassment. 

Stay tuned. The parties will be back in Court on June 10, 2024 for final argument. 

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