The Lawyers Weekly - November 5, 2010

Man sues church over baptism injury

A man who hurt his back performing submersion baptisms has
sued The Church of Jesus Christ of Latter-Day Saints (LDS) to
recover his medical expenses.
Daniel Dastrup, now of Las Vegas, claims to have suffered severe
back injuries after performing nearly 200 baptisms at the LDS tem-
ple in Raleigh, North Carolina. He says some of the young men and
women he submerged weighed up to 250 pounds, and although he
complained about his back pain at the time, a temple official ordered
him to continue. He later discovered he had suffered a herniated disk,
resulting in two back surgeries, according to the Idaho State Journal.
Looks like saving souls may be bad for your back. — Natalie Fraser
BRETT LAMB / ISTOCKPHOTO.COM
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Creating psychologically
safe workplaces

DONALEE MOULTON

In the wake of a new report from the Mental Health Commission of Canada— Tracking the Perfect Legal Storm —it may be a good time for employers to sit down with legal counsel and take a close look at the internal workings of their enterprises. According to the report, financial rewards for damages caused by mental injury at work have increased over the past five years by as much as 700 per cent.

“We’re looking at the reinvention of the employment relationship according to the dictates of the psychologically safe workplace,” the report’s author, Dr. Martin Shain (SJD), told The Lawyers Weekly in an interview.

“This has taken about 150
years to occur,” he added. “There
are cases right now…that will
require an extension of the duty
of care.”
Two major factors have inter-
sected to shape the new legal,
and societal, landscape, said
Karen Liberman, executive dir-
ector of the Mood Disorders
Association of Ontario, which is
based in Toronto. First, the
law — and societal values — is
demanding that employers pro-
vide a psychologically safe
environment. Second, there has
been a de-stigmatization of
mental health in Canada.
“This [report] is a wake-up
call for employers,” stressed
Liberman.

“We’re putting the protection of mental health at work on the same level as the protection of physical health at work. We’ve arrived at a point where we’re protecting the whole person,” said Shain, a professor in the School of Public Health at the University of Toronto.

Tracking the Perfect Legal Storm, an update to an earlier report on stress, mental health and injury also prepared by Shain for the commission, identifies seven legal sources of duty to provide a psychologically safe workplace. These include law of torts, labour relations law, workers’ compensation legislation, and employment contracts.

“In each of the seven areas,
there are landmarks,” said Shain.
“Collectively, for sure, we have
reached a beachhead.”
One of the key decisions in
the case of human rights legisla-
tion is Bertrend v. Golder Associ-
ates, [2009] B.C.H.R.T.D. No.
274, which did not require med-
ical evidence of clinical depres-
sion as a trigger for the duty to
accommodate mental disability.
In this decision, and reflective of
a general trend among human
rights’ tribunals, a liberal defin-
ition of mental health disorders
was accepted.

“The implication of this trend for employers is that they must pay particular attention to the presence of signs of mental disorder that would trigger concern in a reasonable person,” Shain wrote.

“Once the condition is noted
or strongly suspected, the nature
and extent of the duty to accom-
modate the employee is still a
very foggy area in the law,” he
added. “That said, the pre-
cautionary principle in such cases
would suggest that careful inquir-
ies should be instituted by the
employer in situations where job
performance issues give rise to
uncertainty about the mental
state of the employee.”
“Historically, the law did not
pay much attention to this. It’s
starting to,” noted Dianne Poth-
ier, a professor of law at the
Schulich School of Law at Dal-
housie University in Halifax.
“We’re just beginning to figure
out what we should do.”
For employers, she pointed
out, more may be best. “If you
want to be safe, err on the side of
doing more than you have to.”
Duty of care is a concept
entrenched in law —and growing
to include a duty to ensure a
psychologically safe workplace,
Shain noted in his report. He
pointed to Amaral v. Canadian
Musical Reproduction Rights
Agency Ltd., [2009] O.J. No.
1934, which concluded that a
freestanding duty of care to pre-
vent mental suffering does exist
in law.

“The duty to provide and maintain a psychologically safe workplace is expressed and acted upon in different ways across the country and in different branches of the law, but the

See Mental Page 17

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