It’s a story that’s so unbelievable, you’d think it was an episode of Law and Order. But the only fiction in this story is the second life that my client’s co-worker created while impersonating her though electronic communications with another individual.
My client, who we will refer to as “X”, is a police officer. She was arrested on January 31, 2007. Prior to her arrest, she was a respected police officer, a highly-regarded 16 year veteran with the police service. In addition to her full time career , she was actively involved in her community, and began teaching in a police foundations program at a local college, which is where she first met JP, a student, who eventually became her co-worker.
On January 31, 2007, X was arrested and charged with four criminal offences: public mischief, fabricating evidence, conspiracy to falsely prosecute, and breach of trust. The charges were eventually withdrawn against X, but this arrest, and the events that followed, casued X’s mental stress injury. At this point, you’re probably asking yourself, what did X do? She was wondering the same thing, when when she was arrested outsider her home that morning.
The story goes like this. While X was teaching in the police foundations program, she became an unofficial mentor to JP. There was also another student in the same program, named DG, who had no relationship with X outside of the classroom. However, JP and DG had become friends. And unbeknown to X, JP began impersonating X in her digital communications with DG. She created email and phone accounts in X’s name. During her correspondence through these accounts with DG, DG was led to believe he was communicating with X.
In August 2006, while X was away on vacation, JP (pretending to be X) sent a text message to DG saying that JP was in physical danger and needed assistance. DG, thinking this message was legitimate, contacted the police. When the police contacted JP, she lied and claimed she knew nothing about the text. The police also contacted X, who told them she did not send any text message, and confirmed she was on vacation. As a result, DG was charged with mischief, on the basis that he had knowingly made a false report to the police regarding JP.
X’s supervisor requested that X provide a statement regarding her knowledge of the matter, when she returned from vacation. She completed that statement, and confirmed that she had no knowledge of DG’s allegations. She also went into her supervisor’s office to view the video of the police interview with DG and to review the case file. She did so under the understanding that she had her supervisor’s permission.
DG later provided evidence of the electronic communications to prove his innocence. This initiated an investigation into JP and X, and both were charged with criminal offences. That arrest, on January 31, 2007, changed the course of X’s career, and the rest of her life. There was significant media attention around the arrest, subjecting X to further mental anguish and humiliation.
The charges against X were withdrawn in September 2007, after forensic evidence confirmed her innocence, and it was determined that JP was the true culprit behind the messages. Following her exoneration, X’s employer initiated an investigation under the Police Services Act (PSA), on the basis that she improperly viewed the video interview of DG and taken home a copy of the case file. No charges were ever laid against her under under the PSA.
Despite being exonerated in September 2007, X was unable to return to the career she loved. She was diagnosed with PTSD and depression, and filed a claim for benefits with the Workplace Safety and Insurance Board (WSIB). In a decision dated April 26, 2008, an Appeals Resolution Officer denied X initial entitlement to benefits under the WSIB’s Traumatic Mental Stress Policy (15-03-02). The ARO concluded that the arrest of January 31, 2007 did not arise out of and in the course of X’s employment.
Following the denial of her WSIB claim, X then filed Notice of Appeal with the Workplace Safety and Insurance Appeals Tribunal (WSIAT). She then filed a civil action against her employer and the investigating officers. The appeal at the WSIAT was placed into inactive status, pending the outcome of the litigation.
After the litigation was resolved, it was time to re-activate the appeal. That’s where I came into the story. Following an unsuccessful attempt at mediation, the first hurdle we had to overcome, was a preliminary issue raised by the employer, regarding X’s ability to pursue her claim for WSIB benefits. The employer took the position that X had implicitly elected not to receive benefits under the Workplace Safety and Insurance Act, 1997, because she pursued a civil action against the employer.
Without going into all the legal details, the Panel in Decision 1013/17I ruled in X’s favour. They concluded that the WSIAT had jurisdiction to consider X’s appeal of the April 2008 decision, and the appeal could proceed on its merits. However, by this time, Bill 163 had come into effect, and given the pending status of X’s appeal and the PTSD diagnosis, there was question about whether the appeal should be referred to the Board for further adjudication.
Following further written submissions, the Panel released Decision 1013/17I2, concluding that the criteria in s.14(14) of the WSIA had been met, and the WSIAT remitted the matter back to the WSIB for adjudication.
On July 12, 2019, another Appeals Resolution Officer denied initial entitlement to benefits in consideration of Policy 15-03-13, Posttraumatic Stress Disorder in First Responders and Other Designated Workers. The ARO concluded the presumption had been rebutted because the arrest of January 31, 2007 did not arise out of and in the course of the worker’s employment. Another Notice of Appeal was filed with the WSIAT, and the matter was now finally ready to be adjudicated by the Tribunal.
X’s appeal was scheduled to proceed by Zoom Videoconference over the course of 6 days, in early 2022. It was completed in four days, and in their decision of February 25, 2022, the Panel concluded that X has initial entitlement to benefits for traumatic mental stress, pursuant to Policy 15-03-02. The Panel agreed with our submission, that the arrest of January 31, 2007 did in fact arise out of and in the course of X’s employment as a police officer for the following reasons:
You can read the full decision here.
15 years after the day of that arrest, initial entitlement has finally been recognized for my client’s mental stress injury. But it’s not done yet. The WSIB will now have to adjudicate the claim, and make further decisions regarding my client’s entitlement to benefits flowing from that initial entitlement. Let’s hope the Board gets it right this time.