Justice Orders WCB Tribunal Re-Open Deceased Officer's Case

By Robert Thomas

Throughout his career as a police officer the late Jason Mercer witnessed more than a few traumatic events.

So many events that his nickname on the force was “Captain Death.”

Events which according to his spouse, Moose Jaw Police Service (MJPS) Chief Rick Bourassa as well as at least one medical doctor lead to Mercer suffering from Post Traumatic Stress Disorder (PTSD) as well as anxiety and depression which ultimately took his life on March 23, 2016.

But according to the Saskatchewan Worker's Compensation Board (WCB) Tribunal Mercer's mental illness and subsequent suicide were caused elsewhere in his personal life thereby making his widow and three sons ineligible for WCB benefits.

In a January 11, 2022 decision Court of Queen's Bench Justice Richard Danyliuk has quashed the decision by a WCB Review Tribunal and ordered the Tribunal to re-consider their decision based upon the legislation and the facts before it.

In his lengthy decision Justice Danyliuk was asked to reconsider the WCB's Review Tribunal's decision largely based upon “reasonableness" of that decision by the Mercer Estate.

It was an area of law the Justice agreed applied to the Mercer application.

That the WCB Tribunal had not looked at the facts of Mercer's illness in accordance with the actual legislation but had actually made use of a WCB Manual to make the determination of whether or not the late Mercer's illness was workplace related.

“Where the evidence establishes the (worker) sustained a psychological injury (ie 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 employment,” Justice Danyliuk wrote, adding “…it afforded primacy to and applied the Manual to the Act or Regulations.”

For the WCB's side of the argument their position was that Mercer's mental illness was not caused from workplace trauma but rather from his personal life.

The WCB Appeals Tribunal had stated that Mercer's mental illness was caused by events in his life which included the loss of his parents, a sibling being seriously ill as well as marital problems.

“The Appeal Board took the view that the evidence established that Mercer's health care providers had made a fixed determination that the root cause was limited to Mercer's personal, as well as some family issues,” the decision read.

The decision also stated at least one of the health care providers had advised Mercer not to talk about the past but to focus on the future as a major emphasis of his treatment.

The decision pointed out the WCB Appeals Tribunal had failed to “include workplace problems which the Appeals Board did not appear to consider seriously “

The WCB had used this in accordance with its Manual to deny Mercer estate's claim for benefits.

“I appreciate (the) WCB and the Appeal Board deal with and interpret the Act all the time. This does not allow the Appeal Board to effectively repeal or ammend legislation by substituting its own test for that expressly established by the Legislature,” the decision read.

The decision also listed the trauma Mercer had faced as a member of the MJPS.

Traumatic events which included seeing “deaths in many forms - natural deaths, accidents, suicides, homicides, even unexplained deaths,” the decision read.

As Mercer seemed to handle the deaths well he was assigned to speak to families about the loss of their loved ones.

“The better he got to dealing with them, the more he was assigned to do so, until his nickname in the Moose Jaw Police Service was “Captain Death.””

The decision lists the one death which seemingly set off massive psychological distress for Mercer - a 2009 violent home altercation where a woman was stabbed and bleeding in front of her son. The woman would later die.

“Tina Mercer (the widow of Jason Mercer) described how Jason Mercer had nightmares and flashbacks about this matter and could not stop thinking about it,” the decision read.

Chief Rick Bourassa backed up the claims of Mercer suffering from PTSD.

“Chief Bourassa provided information as to anxiety and panic attacks he had witnessed and saw Mr Mercer as suffering from PTSD,” Justice Danyliuk wrote.

Despite being seriously ill Mercer could not bring himself to speak to his employer about what he was suffering from was because he believed it would harm his career and the stigma involved, the decision stated.

“His reluctance to disclose his issues with personnel in the workplace appears to have flowed from his concern it would jeopardize that work or that he would somehow appear “lesser” to his co-workers,” Justice Danyliuk wrote.

Mercer declined hospitalization due to the stigma it would create.

It needs to be noted the Moose Jaw Board of Police Commissioners, as Officer Mercer's employer, did not oppose but rather supported the judicial review application.

In his decision Justice Danyliuk wrote the WCB did not fully assess the medical evidence before it.

“I am certain the Appeal Board failed to properly assess and account for the totality of evidence before it,” the decision read.

In the end Justice Danyliuk allowed the request to review the WCB Tribunal's decision quashing their initial denial.

The application now returns to the WCB Review Tribunal for further review considering all evidence including the legislated presumption that Officer Mercer's psychological illness was in fact caused by trauma witnessed and experienced as a member of the MJPS.

He also awarded legal costs to the applicant.