WCAT Decision Number:  
A1900897 (May 26, 2022)  
DECISION OF THE WORKERS’ COMPENSATION APPEAL TRIBUNAL  
WCAT Decision Number:  
A1900897  
WCAT Decision Date:  
May 26, 2022  
Introduction  
[1]  
The worker is an aircraft maintenance engineer and crew chief employed by the employer, an  
airline. The worker applied to the Workers’ Compensation Board (Board)1 for compensation for  
a mental disorder as a result of an incident at work on May 10, 2018, when he became aware  
that a legal decision concerning a dispute between the worker and the employer had been  
posted on a bulletin board in the workplace.  
[2]  
[3]  
In a decision dated July 19, 2018, the Board concluded that the worker was entitled to  
compensation for a mental disorder, specifically an adjustment disorder, which was  
predominantly caused by the incident on May 10, 2018. The employer requested a review of  
that decision.  
In a decision of the Board’s Review Division dated March 13, 2019 (Review Reference  
#R0242307), a review officer denied the employer’s request for review and confirmed the Board  
decision dated July 19, 2018. The review officer found that the worker’s mental disorder met the  
criteria for compensation under the law and policy. Specifically, the review officer found that the  
worker had a mental disorder which was diagnosed by a registered psychologist; the incident on  
May 10, 2018 was a significant stressor which arose out of and in the course of the worker’s  
employment and was the predominant cause of the worker’s mental disorder; and the mental  
disorder was not caused by a decision of the employer related to the worker’s employment and  
therefore excluded from compensation.  
[4]  
References to section numbers in the Workers Compensation Act (Act) in this decision are  
different from those in the Review Division decision under appeal and the underlying Board  
decision. The Act was reorganized and renumbered under the Statute Revision Act (RSBC  
1996, c 440) effective April 6, 2020. All references to the Act in this decision refer to the  
Workers Compensation Act, RSBC 2019, c. 1, unless otherwise specified. The purpose of the  
revisions is to make the Act easier to read and understand. They are not intended to change the  
legal effect of the Act.  
1
The Board operates as WorkSafeBC.  
1
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
[5]  
[6]  
The employer appealed the March 13, 2019 Review Division decision to the Workers’  
Compensation Appeal Tribunal (WCAT) under section 288 of the Act. The employer submitted  
that the worker did not suffer a mental disorder; rather he was suffering from the effects of a  
pre-existing mental disorder after the May 10, 2018 incident. The employer argued that the  
posting incident on May 10, 2018 was neither a traumatic event nor a significant stressor and  
the worker’s mental disorder is not compensable. It requested that the Review Division decision  
be varied and the worker’s claim for a mental disorder be denied.  
The worker submitted that the employer’s appeal should be denied and the Review Division  
decision confirmed. He argued that the May 10, 2018 was a traumatic event or a significant  
stressor and his mental disorder arose out of and in the course of his employment and is  
compensable. In the alternative, the worker argued that the “predominant cause”2 test in  
subparagraph 135(1)(a)(ii) of the Act violates the worker’s right to equality pursuant to  
section 15 of the Canadian Charter of Rights and Freedoms (Charter). He submitted that the  
causation test should be “causative significance,” which is the causation test that applies for  
mental disorders arising from traumatic events, as well as for injuries and diseases.  
Method of Appeal  
[7]  
The employer requested that the appeal be decided after an oral hearing. The worker objected  
to an oral hearing being held and submitted that the employer’s appeal should be decided  
based on a review of the file and the parties’ written submissions. The worker submitted there  
were no significant issues of credibility and that he was unable to participate in a hearing due to  
his psychological condition. He provided a brief medical note dated May 22, 2019 from his  
family physician, Dr. Symon, which stated as follows: “Due to the situation issues with anxiety,  
he is unable to attend WCAT oral hearing. Rather the process should be done in written  
submissions.” I held a pre-hearing conference on May 29, 2019, as summarized in a  
memorandum which was disclosed to the parties the following day. I determined that there were  
significant issues of credibility which required an oral hearing to resolve. I acknowledge that the  
hearing process may be stressful, especially for a person with a mental disorder. In my view, the  
medical note provided was insufficient as it did not set out what effect participating in a hearing  
would have on the worker’s anxiety condition, how long any effect might last, whether any  
potential negative effect could be reduced by any accommodations, or for how long the worker  
would unable to participate. I considered the rule at item 7.5 of the WCAT Manual of Rules of  
Practice and Procedure (MRPP), I also considered the duty of procedural fairness, including the  
right of a party to be heard. The duty is described at item 1.5.3 of the MRPP. I determined that  
the appeal would proceed by an oral hearing. I indicated the worker could advise of any  
accommodations that would assist him in participating in the hearing and I would consider those  
requests. I held a second pre-hearing conference on September 11, 2019 to deal with hearing  
procedure.  
2
All quotes reproduced as written, except as noted.  
2
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
[8]  
[9]  
At various points during the process, the worker provided medical notes which indicated that it  
would be helpful if he were able to take breaks as needed. I granted the worker’s request. The  
worker and his representative indicated that they would advise if a break was necessary, and  
did so during the hearing.  
I held an oral hearing over 11 days beginning in September 2019 and finishing in September  
2020. The employer was represented by legal counsel and called four witnesses, all of whom  
are employees of the employer: Ms. A, the human resources manager; Mr. B, the base  
manager; Mr. C, the worker’s supervisor; and Mr. E3, the manager of the health services  
department. The worker participated in the appeal and was represented by two members of the  
Workers’ Advisers Office. The worker gave evidence and called four witnesses: his wife; Mr. X,  
a co-worker, friend and union representative; Mr. Y, a co-worker and friend; and Mr. Z, a former  
co-worker and friend. The hearing was held in person in Richmond, British Columbia on  
September 23 to 26, 2019 and March 2 to 6, 2020. A further hearing date scheduled in  
March 2020 was postponed due to the COVID-19 pandemic. The final two days of the hearing  
took place by video conference on September 29 and 30, 2020. The parties completed  
submissions in writing by March 2, 2021.  
Issue(s)  
[10]  
[11]  
The issue is whether the worker suffered a mental disorder on May 10, 2018 which is  
compensable under section 135 of the Act.  
Background and Evidence  
For the purposes of this decision, it is not necessary to set out all the evidence on the worker’s  
claim file or submitted in connection with this appeal. I have set out the evidence only as  
necessary to explain my decision. I have reviewed all of the evidence.  
[12]  
[13]  
The worker’s claim for a mental disorder takes place within the context of a lengthy history of  
disputes between the worker and the employer as well as a prior compensation claim.  
The worker is a member of a union and the terms of his employment are covered by a collective  
agreement. He feels that he was bullied and harassed at work since approximately 2010 by  
various individuals. The worker originally alleged that he was harassed by a co-worker, Mr. F.  
The employer terminated Mr. F’s employment in January 2015. The worker subsequently  
alleged that he was harassed by the base manager, Mr. B. The worker filed bullying and  
harassment complaints with the employer regarding these incidents, including in 2013 and  
2014. He subsequently filed a complaint against his employer with the Canadian Human Rights  
Commission (CHRC), which was dismissed. The worker applied for judicial review of the  
3
Mr. E replaced Ms. D as a witness due to her extended illness. Ms. D was the disability case manager.  
3
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
CHRC’s decision to dismiss his human rights complaint. In March 2017, the worker’s application  
for judicial review was denied by the Federal Court (the Court Decision).  
[14]  
In the meantime, the worker applied to the Board for compensation for a mental disorder in  
August 2016 (the 2016 claim). The Board determined that the worker had not filed his  
application for compensation within a year of the date of injury and he had not been precluded  
from doing so by special circumstances. The Board dismissed his 2016 claim. That decision  
was confirmed in an April 2017 Review Division decision. The worker appealed the Review  
Division decision to the WCAT and, after the events with which this claim is concerned, a  
WCAT vice chair confirmed the Review Division decision on December 27, 2018 (WCAT  
Decision A1701687). The vice chair found that the date of injury of the worker’s claim for mental  
disorder was October 25, 2014 and the worker had not applied for compensation within a year  
of that date. She further found that special circumstances had not precluded him from doing so.  
Therefore, the worker’s August 2016 claim for compensation was barred by the Act from being  
considered on its merits.  
[15]  
[16]  
The worker was off work due to his pre-existing mental disorder from July 2016 until  
September 2017 (approximately 14 months), when he returned to work on a gradual basis. In  
approximately June 2017, while the worker was still off work, he learned that the Court Decision  
had been posted in the workplace. The worker filed a complaint with the employer.  
The worker returned to his work duties in the hangar on a full-time basis in late November 2017.  
On May 10, 2018, the worker learned that the Court Decision was posted at the airport ramp  
office. The worker asked Mr. W, a co-worker who worked at the airport ramp, to drive him there.  
The worker saw the Court Decision posted on a bulletin board at the ramp office. He filmed the  
incident and removed the Court Decision. He reported to his supervisor, Mr. C, and then left the  
worksite.  
[17]  
On May 18, 2018, the worker applied for compensation with respect to the posting incident on  
May 10, 2018. He stated that the incident had occurred at 6:45 p.m. He provided further details  
regarding the circumstances that led to his claim in writing on May 21, 2018. He indicated that,  
in a Review Division decision, the Board had clearly acknowledged evidence of Mr. B bullying  
and harassing him.4 He wrote that the employer and the union had not done anything to prevent  
the bullying, harassment, and retaliation against him when the Court Decision had first been  
posted in the workplace in June 2017, despite his requests for an investigation. On May 10,  
2018, a co-worker told him that someone had again posted a copy of the Court Decision and it  
4
The worker later clarified that he was referring to the April 25, 2017 Review Division decision, which  
had confirmed the Board decision that the worker’s 2016 claim was barred from consideration. The  
worker provided a copy of that decision with his submission to the WCAT. In that decision, the review  
officer specifically indicated that the merits of the claim were not before him. That statement is  
inconsistent with the worker’s position that the review officer found there was bullying and harassment.  
4
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
had been there for a week. The worker stated that he found copies of the Court Decision in the  
north side of the employer’s facility, hung directly underneath the employee shift schedule. He  
wrote:  
On [M]ay 10th, 2018 when I saw these postings again and with my own eyes  
I was traumatized, humiliated and my dignity in front of other coworkers  
damaged, I have nightmares that I might get another harassing calls again  
because of this as I did in 2017, rumours and gossips behind me has started  
again, my dignity and self respect is damaged.  
[18]  
[19]  
The worker provided the Board with a copy of a letter he wrote to the employer dated May 15,  
2018. In that letter, the worker wrote that he blamed the employer for failing to investigate  
when similar behaviour had occurred in 2017. The worker stated the employer could have  
investigated by reviewing surveillance footage to determine who had posted the decision or  
posting a memorandum to indicate that the behaviour of posting the decision was unacceptable.  
He said that the employer’s failure to investigate demonstrated that the employer wanted the  
harassing behaviour to continue.  
The Board case manager spoke with the worker on June 18, 2018. The worker explained  
that the Court Decision had previously been posted on a bulletin board in the lunch room in  
June 2017, but he did not see it as he was off work on long-term disability when it occurred. The  
worker stated there were multiple copies. The worker acknowledged the Court Decision was  
publicly available online. However, he said the employer printed them out and distributed them  
to others to put them up on the bulletin board. The worker said that shortly after the Court  
Decision was first posted, a former co-worker called the worker at home and told the worker that  
he was “F___ed” with the employer and would no longer be welcome at work. The worker said  
that by the time he found out about it, the Court Decision was no longer posted at work. The  
worker alleged that Mr. G had printed the decision. He said that Mr. G was part of management  
and worked with Mr. B. Mr. B had reportedly removed a copy of the Court Decision from the  
workplace; however, the worker did not believe him. He said the human resources manager,  
Ms. A, was protecting Mr. B. On May 10, 2018, the worker learned the Court Decision was  
posted at the ramp office. A co-worker and witness (Mr. W) drove the worker there as the  
worker did not have access to drive there. The worker said that was the main stressor, along  
with the fact that the employer did not do anything about it the first time it occurred.  
[20]  
The case manager spoke with Mr. W, who confirmed that he had informed the worker of the  
posting and drove him there to see it.  
5
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
[21]  
The Board obtained the clinical records from Dr. Symon, beginning in January 2013. Those  
records show the following:  
The worker was diagnosed with generalized anxiety disorder, insomnia, and headache by  
Dr. Baldelli, a family physician at the same clinic as Dr. Symon, in October 2014. Dr. Baldelli  
prescribed zopiclone, a sleep medication.  
In December 2014 the worker reported stress at work that had been going on for years. He  
complained of harassment and problems with colleagues. Dr. Symon diagnosed stress and  
insomnia.  
The clinical records referred to stress and/or anxiety in January, February, April, May,  
September, and October 2015. Some of those references were general while others related  
to his health or to work. The worker also endorsed related physical symptoms including  
insomnia, headache and heart-related concerns. In October 2015, Dr. Symon prescribed  
Ativan (an anti-anxiety medication).  
On October 19, 2015, Dr. Symon noted the worker found Ativan helpful but was using it  
every day. The worker was very concerned that he had cardiac disease. He was off work  
and was worried about returning to work, especially about working in confined spaces.  
Dr. Symon recommended counselling.  
In November 2015, it was noted that the worker was feeling better after a vacation and all  
his somatic symptoms and anxiety disappeared. He was ready to return to work and felt he  
did not have to see a psychiatrist or counsellor.  
In May, June and July 2016, the treating physician noted ongoing stress with the worker’s  
Federal Court case. The worker went off of work. On July 24, 2016, the physician noted the  
worker had been interviewed by a mental health team which had suggested a referral to a  
rapid access clinic. The physician noted anxiety from stress at work and from the worker’s  
court case.  
The worker attended an assessment on August 26, 2016 with Dr. Chan, a psychiatrist, and  
Dr. Karakoc, a resident psychiatrist.5 The worker complained of being distracted by thoughts  
of harassment at work and his upcoming court case. He was afraid of making mistakes at  
work. He complained of physical symptoms of anxiety, including numbness in his hands,  
heart palpitations, headaches, and dizziness. He had strange dreams related to work and  
wanted to avoid his place of work. Dr. Chan’s impression was that the worker was  
presenting with symptoms of anxiety including constant worries about work and a related  
court case, poor concentration, irritability, restlessness, poor sleep, and low energy in the  
context of workplace harassment. Dr. Chan diagnosed an adjustment disorder with anxiety  
5
For simplicity, I refer to the report of Dr. Chan and Dr. Karakoc as the report of Dr. Chan.  
6
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
and anxious distress. She indicated that the alternative, or rule-out diagnosis, was  
unspecified anxiety disorder. She recommended the worker take citalopram (an  
antidepressant) and participate in a mixed anxiety cognitive behavioural therapy group.  
The worker attended a follow-up assessment with Dr. Chan on September 9, 2016. His  
presentation and diagnosis remained the same as in the initial assessment.  
The clinical records in September, November, and December 2016 continued to refer to  
stress and anxiety. In December 2016, Dr. Symon noted that the worker had financial stress  
from his court case. He felt unable to return to work due to tension. He felt everyone would  
be watching him to see if he would make mistakes. He was distracted, unable to  
concentrate, and forgetful.  
In January 2017, Dr. Symon noted the worker had ongoing severe stress from the legal  
battle with the employer. The worker did not feel able to go back to work due to the  
poisonous atmosphere with employees and the stressful working environment with no  
tolerance for mistakes. Dr. Symon diagnosed anxiety and increased the worker’s dose of  
citalopram. The worker was waiting to start cognitive behavioural therapy in February 2017.  
In April 2017, the worker reported he had completed his cognitive behavioural therapy  
course and had increased the dose of citalopram to the 30 milligrams per day. Dr. Symon  
diagnosed chronic anxiety and stress. He renewed the worker’s prescriptions for Ativan and  
citalopram.  
The worker sought treatment for headache and an irregular heartbeat in April, June, and  
July 2017. There is no mention in the clinical records of the first posting of Court Decision at  
work. In September 2017, the worker indicated that he was planning to return to work the  
following week and was very anxious about it.  
On November 21, 2017, the worker reported he had almost returned to work full time. He  
continued to have moderate anxiety. He was finding it difficult to do a “run-in procedure”  
which was time sensitive and critical for aircraft safety. The worker requested a letter that he  
was unable to do that task. He was still using anxiety medication (Ativan) every few days.  
Dr. Symon refilled the worker’s prescriptions for Ativan and citalopram (prescribed at  
20 milligrams).  
On March 7, 2018, the worker indicated that he still had “quite severe anxiety and insomnia.”  
He sometimes felt depressed. He was continuing to see a counsellor. Dr. Symon diagnosed  
anxiety and depression and referred the worker to mental health services. He refilled the  
worker’s medications.  
On April 22, 2018, the worker reported that he was again going through a period of “quite  
intense anxiety” and was suffering from insomnia and headaches. He felt that he was being  
7
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
constantly watched at work and felt like they were waiting for him to make a mistake so that  
they had an excuse to fire him. He was concerned by a recent engine fire on a commercial  
flight in the United States. He was checking his work three or four times to make sure there  
were no mistakes. Dr. Symon diagnosed insomnia and tension headache and prescribed  
pain medication.  
On April 28, 2018 the worker saw Dr. Wardill, a family physician at the same medical clinic.  
He reported he was very anxious and was concerned with making a mistake at work. He  
had chronic anxiety and had had harassment issues at work in the past for which he had  
required time off. He was experiencing headache and sleep disruption. He reported his  
anxiety came in clusters of a few days. On examination, Dr. Wardill reported that the worker  
was hyperventilating in the office and looked very anxious. She recommended the worker  
follow up with Dr. Symon and also discussed options with the worker, including doing  
cognitive behavioural therapy or increasing the dose of or changing his anti-depressant  
medication.  
The worker saw Dr. Kurra, a family physician at the same clinic, on May 11, 2018 (the day  
after the incident). Dr. Kurra wrote: “See prev[ious] notes. Has anxiety from bullying and  
harassment at work. Had some harassment again yesterday his human rights complaint  
was posted at work again went home with a lot of anxiety and could not sleep. Still  
anxious. Did not take [A]tivan. No [suicidal ideation].” Dr. Kurra diagnosed anxiety. She  
advised the worker to use Ativan and to see Dr. Symon for an increase or change in his  
anti-depressant medication.  
The worker saw Dr. Kalia, a family physician at the same clinic, on May 17, 2018. The  
worker reported that he was in counselling. He was really anxious and had a panic attack  
the previous week. He had been off work since May 10, 2018. He was having difficulty  
sleeping and was using Ativan. His anxiety was worse at night. Dr. Kalia observed that the  
worker was alert and was not in acute or apparent distress. She diagnosed anxiety and  
insomnia. She increased the worker’s citalopram from 20 to 30 milligrams, prescribed an  
antihistamine for sleep, and refilled the worker’s migraine medication. She strongly  
encouraged the worker to continue counselling.  
The worker saw Dr. Symon on May 28, 2018. Dr. Symon noted that the worker had been off  
work since his recent flare-up of anxiety, after he found colleagues had posted personal  
information of his at work. The worker stated he wanted to return to work but stated that  
incidents like this consume him and he was unable to stop thinking about the way he has  
been insulted. He had increased the dose of citalopram slightly and was using Ativan  
judiciously, usually just once per day. The worker reported he was highly anxious,  
experiencing quite severe insomnia, and had had a few full-blown panic attacks. Dr. Symon  
diagnosed anxiety. He recommended counselling and prescribed Ativan.  
8
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
The worker saw Dr. Kalia on May 30, 2018. He reported that he still had significant anxiety.  
He stated that he had to go to court on Monday (June 4, 2018). He stated he felt too anxious  
and did not feel he was able to attend. Dr. Kalia noted the worker was alert and in no  
apparent distress. Dr. Kalia diagnosed anxiety and was given a note.  
The worker saw Dr. Symon on June 11, 2018. He reported suffering from quite severe  
anxiety, insomnia, and suppressed anger. He reported that he was worried about returning  
to work and making a mistake in his high stress job. He stated that “everyone is watching  
him like a hawk and waiting for him to slip up.” He denied severe depression. He was seeing  
Ms. J. Kalia, a registered clinical counsellor, through the medical clinic. Dr. Symon  
diagnosed stress and anxiety. He renewed the worker’s prescriptions for citalopram and  
Ativan.  
The clinical records contain counselling notes with Ms. Kalia beginning on June 14, 2018.  
These notes show that the worker had a hard time not thinking and talking about his work  
stress.  
[22]  
[23]  
The Board case manager referred the worker to Dr. Beihl for an expedited psychological  
assessment, which took place on July 9, 2018. In the report of the following day, Dr. Beihl  
diagnosed the worker with an adjustment disorder with mixed anxiety and depressed mood.  
Dr. Beihl stated that the May 2018 posting incident was the predominant cause of the worker’s  
aggravated anxiety.  
Prior to the oral hearing commencing, I requested the counselling records from Dr. Blasberg,  
registered psychologist, with respect to the worker. Those records were provided and disclosed  
to the parties. The worker began counselling with Dr. Blasberg in April 2017 and was  
discharged on November 30, 2017. The worker reported difficulty with ruminative anxiety about  
past perceived harassment at work and ongoing legal challenges. In the 21 appointments that  
the worker had in that period, he mentioned sleep difficulty on at least four occasions throughout  
that time, including in June, August, and November 2017. He reported physiological symptoms  
related to stress such as twitching, tics, and irregular heartbeat. For instance, on October 11,  
2017, he reported experiencing physiological symptoms at work, such as twitching. He reported  
ruminative anxiety or intrusive thoughts about past work harassment at least five times. He  
reported significant stress related to his ongoing legal challenges at least five times, including  
twice in both June and July, as well as November 30, 2017. Specifically, on November 30, 2017  
the worker reported a resurgence of symptoms after attending a legal hearing related to work. In  
contrast, there was one reference (on September 26, 2017) to the worker learning about the  
posting of the Court Decision earlier that year.  
[24]  
The worker next saw Dr. Blasberg on May 3, 2018, a week prior to the claim incident, noting  
that “he had a few moments of panic symptoms at work” which had been troubling him. He  
continued to have ruminative thoughts about past experiences at work. He was continuing to  
9
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
deal with his 2016 compensation claim (his WCAT appeal) and the CHRC, which were stressful  
at times. He continued to use his sick days as necessary to recuperate from stresses at work.  
[25]  
The worker saw Dr. Blasberg on May 14, 2018. The worker reported his employer had posted  
sensitive information about his CHRC complaint on a bulletin board again. This had enflamed  
him and caused a resurgence of symptoms. Dr. Blasberg observed that he was highly agitated.  
[26]  
[27]  
On May 23, 2018, the worker reported difficulty with work-related rumination. He was  
experiencing sleep problems and a return of some somatic symptoms.  
The worker submitted a letter from Dr. Blasberg dated June 27, 2019 regarding the content of  
the clinical records for the period April 26, 2017 to May 23, 2018. Dr. Blasberg wrote that he  
recalled several discussions over the course of the worker’s treatment related to the public  
posting of his private personal information at work and feelings of distress and anxiety which  
impacted his functioning, even if those discussions were not documented in the clinical record.  
[28]  
[29]  
The worker returned to work on a graduated basis and returned to full duties in July 2019. The  
Board ended the worker’s wage loss benefits effective July 21, 2019 and determined the  
worker’s injury had not resulted in a permanent condition. Therefore, the worker was not entitled  
to a permanent disability benefit.  
On August 21, 2019, the employer submitted an undated opinion from Dr. Grosse, a  
psychiatrist. The employer had previously provided the July 16, 2019 letter in which it requested  
Dr. Grosse’s opinion, as well as the material it provided to Dr. Grosse. Dr. Grosse opined that  
the anxiety symptoms which led to the worker going off work in May 2018 were due to an  
exacerbation of the worker’s pre-existing non-compensable anxiety disorder and did not  
represent a separate co-existing condition.  
[30]  
The worker provided a report from Dr. Lymburner, a psychologist, dated August 11, 2019.  
Dr. Lymburner’s report was based on a psychological assessment of the worker conducted on  
July 12, 2019. Dr. Lymburner stated her opinion that, prior to May 10, 2019, the worker suffered  
from “other specified anxiety disorder,” which was mild. She stated that the worker’s pre-existing  
anxiety disorder was significantly aggravated by the May 10, 2018 posting. In addition, she  
agreed with Dr. Beihl that adjustment disorder with mixed anxiety and depressed mood was the  
most appropriate diagnosis. She stated the May 10, 2018 incident was the predominant cause  
of the worker’s adjustment disorder.  
[31]  
In a September 2, 2019 letter provided by the worker, Dr. Lymburner set out her disagreement  
with Dr. Grosse’s opinion. On September 11, 2019, the employer provided an undated letter  
from Dr. Grosse in which he disagreed with Dr. Lymburner’s opinion.  
10  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1900897 (May 26, 2022)  
[32]  
[33]  
[34]  
The worker submitted an email that he sent to Mr. W on September 20, 2019 and Mr. W’s  
response to the worker on the same date. Mr. W agreed with the worker’s statement about what  
happened on May 10, 2018.  
The employer provided the worker’s employee absence profile for the period 2014 to 2019. The  
employer also provided a number of e-mails between the worker and Ms. A, as well as between  
the worker and Ms. U, the national human rights coordinator for the union.  
As required by my order, the employer provided the Joint Investigation Report and underlying  
investigation notes and documents. The investigation was conducted by Ms. A from the  
employer and Ms. U from the union. The investigation focussed on the circumstances  
surrounding the worker discovering the Court Decision posted on May 10, 2018. The joint  
investigators interviewed ten witnesses, four of whom also testified at the WCAT oral hearing  
(Mr. B; Mr. C witness 1; Mr. X witness 8; and Mr. Y witness 6). Mr. W was interviewed  
(witness 7), as was Mr. V (witness 9). Where it is necessary to refer to their evidence, I refer to  
the remainder of the witnesses by their witness number in the joint investigation.  
[35]  
[36]  
Mr. B and the first five witnesses were interviewed on June 26 and 27, 2018. Witnesses 6, 7,  
and 8 were interviewed on July 5, 6, and 10, 2018, respectively. Witness 9 was interviewed on  
November 22, 2018. The worker was interviewed in June 2019. While there do not appear to be  
any notes provided from the worker’s interview, the worker’s statement is set out at page 6 of  
the joint investigation report.  
The conclusions of the joint investigation report are not binding on me in any way. The  
definitions applied by the joint investigators and the purpose of the inquiry are not the same as  
the issues before me in this appeal. I have not relied in any way on their conclusions, including  
their findings of fact. However, the notes of the witness interviews form a part of the evidence  
that I am able to weigh in determining what occurred with respect to the posting of the worker’s  
Court Decision in the workplace, including where, when, and by whom it was seen.  
[37]  
The worker provided a video which showed his perspective when travelling to the ramp on  
May 10, 2018. The video is just under four minutes long. It did not contain a time stamp or show  
when it was recorded. The worker gave his name and indicated that the date was May 10, 2018.  
He stated he was told that day that his Court Decision was again printed at the ramp office and  
had apparently been seen there for a week. He said that he wanted to see for himself “this  
retaliating and harassing bullying behaviour of the employer that has not been able to stop.”  
Once the worker arrived at the ramp office, he followed Mr. W into the office. He walked to the  
bulletin board where the video shows that the Court Decision was posted unobstructed at the  
bottom right corner. Pinholes are visible in the document.  
[38]  
There was a significant amount of evidence provided by witnesses at the oral hearing, although  
not all of it was relevant to the issues which were necessary to decide on this appeal. I have  
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considered all of the evidence. I will refer to the witness evidence from the oral hearing as  
necessary to explain my reasons and findings.  
Reasons and Findings  
[39]  
[40]  
Section 303(2) of the Act requires the WCAT to make its decision based on the merits and  
justice of the case, but in doing so it must apply any policies of the board of directors of the  
Board that are applicable in that case. The policies in the Rehabilitation Services and Claims  
Manual, Volume II (RSCM II) apply to this appeal.  
The changes to item C3-13.00 of the RSCM II effective July 23, 2018 apply to all decisions  
made by the Board and the WCAT, including all decisions made, but not finally adjudicated,  
before July 23, 2018. The policies in Chapter 3 of the RSCM II were revised effective  
February 1, 2020, including item C3-13.00. However, the policy revisions on February 1, 2020  
apply only to Board decisions and do not apply to the WCAT. The March 13, 2019 Review  
Division decision and the underlying Board decision were issued prior to that date. The effect of  
these changes is that Chapter 3 of the RSCM II as it was after July 23, 2018 but before  
February 1, 2020 continues to apply in the appeal, with the changes to section numbers and  
language reflecting the revised Act.  
[41]  
[42]  
The standard of proof is the balance of probabilities as modified by subsection 303(5) of the Act.  
That section provides that in compensation cases, where the evidence supporting different  
findings on an issue is evenly weighted, the WCAT must resolve that issue in a manner that  
favours the worker.  
I. Jurisdiction and Procedural Issues  
The parties to the appeal raised numerous evidentiary, jurisdictional, and procedural concerns  
throughout the proceedings, which lengthened the proceedings beyond what would otherwise  
have been necessary to hear this appeal and removed the focus from the key issues. It is not  
necessary for the purposes of this decision to set out all of those concerns and rulings. I issued  
a number of memoranda in which I addressed many of those concerns or objections. They  
include memoranda dated May 30, 2019, September 18, 2019, February 26, 2020, October 14,  
2020, October 29, 2020 and November 30, 2020.  
[43]  
The worker was disabled from work due to a mental disorder in July 2016 and filed a  
compensation claim in August 2016. The Board determined that the worker’s 2016 claim was  
statute-barred from being adjudicated. Therefore, I conclude that I do not have jurisdiction to  
consider the worker’s entitlement to compensation for a mental disorder in relation to incidents  
or events which took place prior to August 2016. I communicated the issue before me in the  
appeal and my view of my jurisdiction to the parties. I provided the opportunity for the parties to  
make submissions on the extent of my jurisdiction. I indicated that while I would hear general  
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background evidence about the nature of the ongoing dispute between the parties, I would not  
hear evidence about specific events prior to that date and would not make findings on whether  
the worker was subjected to bullying and harassment, as defined by the law and policy, prior to  
that date. I encouraged the parties to restrict the evidence to that which was relevant to the  
issue in this appeal.  
A. Audio recording  
[44]  
I declined to admit a surreptitious audio recording from October 2014 as requested by the  
worker. In his testimony, the worker described that the audio recording involved a meeting  
between himself and two union officials regarding his CHRC complaint. I gather the audio  
recording involves hearsay evidence of the union officials regarding something Mr. B said to  
them (and is the same audio recording which was discussed in the Court Decision). Whether  
Mr. B bullied and harassed the worker in 2014 is not an issue that is before me in this appeal.  
Therefore, I am not satisfied that the audio recording is relevant in any way to the issues that  
I must decide in this appeal. I also declined to admit a number of documents from the worker  
that predated August 2016 on the basis that they were not relevant.  
B. CHRC investigation reports  
[45]  
I declined to admit into evidence two investigation reports from the worker’s complaints to the  
CHRC which were provided by the employer on August 15, 2019, at Tabs 13 and 14 of the  
employer’s book of documents. I declined to admit these documents based on the lack of  
relevance to the issue under appeal for the first report and because they specifically stated that  
they were not for distribution except to the parties to the complaint. I indicated that the parties  
could introduce direct evidence about any circumstances of the investigation which were  
relevant to the issue under appeal.  
C. Joint Investigation  
[46]  
I issued an order for production of documents related to the joint investigation by the employer  
and union into the 2018 posting of the Court Decision in the workplace, as requested by the  
worker. I had originally denied the worker’s request for an order for the employer to produce  
those documents (as well as for the worker’s entire personnel file going back 20 years) in  
advance of the hearing, as the worker’s request for production had not satisfied the  
requirements in the practice directive in item 11.7 of the MRPP. I had indicated the worker could  
renew the request at the hearing and I would consider it further. The worker renewed that  
request on September 23, 2019, the first day of the hearing. The joint investigation report came  
up during the cross-examination of Ms. A on September 23, 2019. At that point, the employer  
clarified that the joint investigation report was separate from the joint investigation outcome  
letter which it had already provided and that the collective agreement prevented it from  
providing the investigation report without an order to do so. It indicated the notes from the  
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witness interviews were available. The employer agreed to disclose the report and underlying  
documents if it was ordered to produce them, if the names of witnesses were able to be  
redacted (with a separate list of the names provided), and if a copy of the report and underlying  
documents were not provided to the worker, but only to his representative. The worker would be  
able to go over the documents with the representative, but not to retain a copy. The purpose of  
these conditions was to prevent a violation of the collective agreement. The worker agreed to  
the conditions. It was agreed that the employer would have an opportunity to directly  
examine Ms. A on the investigation report and then the worker would resume with Ms. A’s  
cross-examination. The worker requested a late start to review the records the following day,  
which was granted.  
[47]  
I adjourned the hearing and issued the order for production of the documents on the afternoon  
of September 23, 2019. The employer provided the majority of the documents to the worker that  
evening. Ms. U’s notes were provided the following morning. The hearing was adjourned until  
1:00 p.m. on September 24, 2019 in order to give the worker the opportunity to review the  
documents. When the hearing resumed, the worker objected to the order for production of  
documents being issued and that the documents were disclosed after the worker had begun  
Ms. A’s cross-examination. The worker argued he had been “ambushed” and objected to  
splitting the cross-examination of Ms. A. The worker did not raise any of those objections the  
day before (other than the request for time to review, which was granted). I find there was no  
unfairness to the worker as a result of my granting his request for an order to produce the  
documents or the manner in which it occurred.  
D. Witnesses and acceptance of other evidence  
[48]  
[49]  
I also issued orders for some of the worker’s witnesses to attend the hearing so that the  
witnesses could receive time off from work in order to give evidence.  
In his submission, the worker wrote that, prior to the hearing, he advised that he was prepared  
to call further witnesses, such as his parents, as to his mental state after the May 10, 2018  
incident, but that “The Panel felt that [the worker’s wife’s] evidence as a wife would be sufficient  
and no further family witnesses were needed.” This misstates the discussion around the  
potential to provide evidence from the worker’s parents. At the May 29, 2019 pre-hearing  
conference, the worker indicated that he might provide written statements from his parents.  
There was no suggestion that they would be called as witnesses at the hearing, as it was  
reported that they were in ill health. The employer indicated it would likely object to such  
evidence. There was some discussion regarding the weight to be afforded to written statements,  
the usefulness of that evidence, and concerns regarding the duplication of evidence. In the  
May 30, 2019 memorandum, it was left open to the worker to provide written statements from  
his parents. The worker provided the witness list on July 12, 2019. His parents were not on that  
list. The list contained two witnesses who had not been discussed at the pre-hearing  
conference. The worker did not provide written statements from his parents. It was up to the  
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WCAT Decision Number:  
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worker to decide what evidence to lead in the appeal, subject to any rulings on objections made  
by the employer. I made no ruling regarding admissibility of evidence from the worker’s parents.  
[50]  
Both parties requested that other evidence not be admitted. For example, the employer objected  
to the September 20, 2019 email of Mr. W and to Dr. Blasberg’s letter dated June 29, 2019  
being admitted into evidence, as well as to the worker calling Mr. Z as a witness. Section 298 of  
the Act and item 11.3 of the MRPP provide that the WCAT may receive and accept evidence it  
considers relevant, necessary, and appropriate, regardless of whether the evidence is  
admissible in a court of law. I indicated that I would accept the evidence but I would consider the  
arguments raised in determining the weight to be attributed to that evidence. I also noted the  
employer could object to any evidence of Mr. Z which was not relevant to the appeal.  
[51]  
[52]  
[53]  
After the hearing had started, the worker submitted the video he took while driving to and  
arriving at the ramp office on May 10, 2018. The employer initially objected to the video being  
admitted into evidence. The employer reviewed the video with the worker outside of the hearing.  
After doing so, the employer withdrew its objection and I admitted the video into evidence as it is  
relevant to the appeal.  
E. Admissibility of Dr. Grosse’s opinion and conflict of interest  
In his submission, the worker objected to Dr. Grosse’s opinion being admitted into evidence on  
the basis that the employer breached the worker’s privacy by providing the file documents and  
medical records to Dr. Grosse. The worker argued that Dr. Grosse’s opinion was not admissible  
as it violated subsection 235(1) of the Act and a number of different codes of ethics and practice  
standards. The employer argued that it was improper for the worker to first raise this objection in  
his written submission in January 2021 when Dr. Grosse’s report was provided to the WCAT in  
August 2019.  
Section 235 of the Act provides:  
235 (1) If information in a claim file, or in any other material relating to the claim  
of an injured or disabled worker, is disclosed for the purposes of this Act  
by an officer or employee of the Board to a person other than the worker,  
that other person must not disclose the information except as follows:  
(a) in compliance with an enactment of British Columbia or Canada;  
(b) in compliance with a subpoena, warrant or order issued or made  
by a court, tribunal, person or body with jurisdiction to compel the  
production of information;  
(c) for the purpose of preparing a submission or argument for  
a proceeding under a compensation provision, an OHS  
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[occupational health and safety] provision or Part 7 [Appeals to  
Appeal Tribunal];  
(d) if the information is about a person, the person has identified the  
information and consented, in the manner required by the Board,  
to disclosure of that information.  
(2) A court, tribunal or other body may not admit into evidence any  
information that is disclosed in contravention of subsection (1).  
(3) A person who contravenes subsection (1) commits an offence.  
[54]  
The worker’s medical records were information falling within subsection 235(1) as they were  
disclosed to the employer by the Board. The employer was prohibited from disclosing that  
information except for in the circumstances allowed by paragraphs (a) through (d). Given the  
worker’s statement about consent, it appears the worker considered paragraph 235(1)(d).  
However, in my view, paragraph 235(1)(c) is more applicable in this situation.  
[55]  
[56]  
[57]  
Applying the modern principal of statutory interpretation, the words of paragraph 235(1)(c) must  
be read in the entire context of the Act, in their ordinary and grammatical sense harmoniously  
with the scheme and purpose of the Act, the object of the Act, and the intention of the  
Legislature.  
Contextually, section 235 must be read as broadly applicable to matters relating to the  
compensation of workers. It is in Part 4 of the Act, which concerns compensation of injured  
workers and their dependants, but it is also applicable in the context of WCAT appeals, by virtue  
of subsection 314(2) of the Act.  
The key phrase in paragraph 235(1)(c) is, “for the purpose of preparing a submission or  
argument for a proceeding.” In that phrase “submission” must be taken to mean something  
other than “argument” otherwise, that word would be redundant. The Oxford English Dictionary  
definition of “submission” in the context of a legal proceeding is “theory, etc. submitted by  
counsel to judge or jury.” Put another way, “submission” means “that which is submitted for  
consideration.” Thus, in its ordinary sense, “submission” encompasses not only the theory of a  
case but the evidence and argument in support of that theory.  
[58]  
The question is whether “preparing a submission” includes obtaining expert evidence. One  
could argue that it would have been simple to include words “obtaining expert evidence” in  
paragraph 235(1)(c), and the fact that they are not means their meaning should not be ascribed  
to the words “preparing a submission.” Thus, interpreted narrowly, paragraph 235(1)(c) would  
allow an employer to disclose information obtained from the Board only to its representative so  
that the representative can prepare a submission. Interpreted broadly, paragraph 235(1)(c)  
would allow the employer to disclose information with others, such as experts.  
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[59]  
Subsection 235(2) may provide some context as to the intended meaning of subsection 235(1).  
That subsection prohibits a court, tribunal, or other body from admitting into evidence  
information disclosed contrary to subsection 235(1). In my view, the narrow interpretation of  
paragraph 235(1)(c) would have the absurd result that WCAT could not admit into evidence  
information from the worker’s claim file that has been properly disclosed to the worker, the  
employer, and to WCAT (and thus previously admitted), simply because the employer had  
disclosed the information to an expert for the purpose of obtaining an expert opinion for the  
purpose of the appeal, contrary to section 235(1). In the case at hand, that would mean the  
entire claim file plus Dr. Blasberg’s records, all of which were disclosed by the employer to  
Dr. Gosse, would not be admissible in the appeal, even if the evidence was in the worker’s  
favour. Application of section 235(2) is not limited to tribunals other than WCAT. Section 235(2)  
can be understood to preclude a court or a tribunal other than WCAT from admitting into  
evidence information disclosed contrary to section 235(1). Thus, if “submission” in  
section 235(1) is interpreted to include obtaining expert evidence for use in the appeal the  
seemingly absurd result described above would be avoided without rendering section 235(2)  
meaningless.  
[60]  
[61]  
Broadly speaking, the scheme and purpose of the Act is to provide secure, no fault  
compensation to injured workers, and collective liability to employers (Pasiechnyk v.  
Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890). Neither a narrow  
interpretation of paragraph 235(1)(c), which would exclude disclosure of information in order to  
obtain expert evidence, nor a broad interpretation, which would include such disclosure, is  
obviously disharmonious with the broad scheme and purpose of the Act.  
The reference in paragraph 235(1)(c) to Part 7 of the Act (Appeals to the Appeal Tribunal)  
invites consideration of the purpose of Part 7, which can to be taken to include adjudication in  
accordance with the Act and policy, and compliance with the principles of natural justice as per  
the reference to the merits and justice of the case in subsection 303(2) of the Act. In my view,  
the principles of procedural fairness support a broad interpretation of paragraph 235(1)(c)  
because an employer ought not be precluded from obtaining relevant expert evidence.  
A counterargument is that if expert medical evidence is needed, an employer could ask for the  
worker’s consent to disclose pursuant to paragraph 235(1)(d) and, if the worker declined  
consent, could ask WCAT to obtain an opinion from an independent health professional. On  
balance, I conclude that a procedural fairness argument provides some support for a broad  
interpretation of paragraph 235(1(c).  
[62]  
Where the meaning of statutory provisions is unclear, it is appropriate to consider legislative  
history and debate. Prior to the revision of the Act effective April 6, 2020, subsection 235(1) was  
subsection 95(1.1). Subsection 95(1.1) was added to the Act in 1995 by the Miscellaneous  
Statutes Amendment Act (No. 2), 1995. Before then, there was no specific reference to  
subsequent disclosure of information disclosed to a person other than the worker. The  
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amendment received very little debate in committee. The members of the Legislative Assembly  
(MLA) appeared to be concerned primarily about whether the addition of subsection 95(1.1)  
would limit their ability to receive information from the Board when assisting constituents with  
compensation claims. The following statements seem to suggest that subsection 95(1.1) would  
prevent an employer from using information obtained from the Board during the appeal process  
for a purpose outside the appeal process. From that it might be inferred that subsection 95(1.1)  
would permit the employer to disclose the information for a purpose within the appeal process.  
L. Reid: The new 34 (1.1) [sic] says: “If information in a claim file, or in any other  
material pertaining to the claim of an injured or disabled worker, is disclosed for  
the purposes of this Act by an officer or employee of the board to a person other  
than the worker, that person shall not disclose the information....” That’s the  
section I’m referring to. What I’m suggesting is that oftentimes I as the MLA, and  
certainly other MLAs in this chamber, have received information directly from an  
employee of the Workers’ Compensation Board on behalf of a constituent. I’m  
seeking clarification on whether or not that activity will continue to be permissible  
under this new amendment.  
Hon. C. Gabelmann: I understand that this won’t change or make any difference  
to the relationship that MLAs -- or advocates, for that matter -- have with the  
injured worker or with the board with respect to that information. This deals  
simply with information that could be used as part of the appeal process later on,  
so there’s not an inappropriate sharing of information that could impact  
inappropriately on the appeal process.  
L. Reid: I appreciate the minister’s clarification, but in terms of extending the  
discussion, would the scenario ever arise where an MLA would be asked to  
participate in an appeal process? Does this allow for that scenario?  
Hon. C. Gabelmann: In representing the worker at an appeal hearing, the MLA  
would need the worker’s consent to divulge any information the MLA might have.  
Without that consent, you couldn’t divulge it.  
L. Reid: To summarize, then, I am hearing the minister say that the status quo  
will be maintained -- that the same provisions of constituent consent for the MLA  
to become involved remain in place and that this does not alter that relationship.  
Hon. C. Gabelmann: This deals with ensuring that the paper -- the material, the  
file -- isn’t disclosed to the employer. When receiving the information in the file in  
respect of the appeal, the employer doesn’t disclose it further. The disclosure is  
limited to the question at hand in the appeal, and disclosure beyond that or for  
some other purpose -- some retributive purpose, perhaps -- is not allowed.  
L. Reid: I thank the minister for that clarification. What I’m hearing him say is that  
the individuals that the worker would ask to be involved...the status quo around  
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that arrangement is maintained, but it puts on additional conditions for other  
people who may be asked to participate in the appeal process. Can I ask the  
minister to confirm?  
Hon. C. Gabelmann: In general, the answer is yes.  
Hon. C. Gabelmann: In the situation that the member described, the employer  
would already have the information. What is barred is the employer using that  
information for purposes other than the appeal. It therefore can’t be disseminated  
beyond that process.  
Interjection.  
Hon. C. Gabelmann: Oh, if there’s a court order, then.... I guess the other point  
to make is that this rarely gets into the court process, given the appeal process in  
the WCB [Board] structure. This is where it occurs: in the appeal process. Both  
parties have the information’s disclosure, but what’s prohibited is the use of that  
material by a party.... In effect, it’s to prevent the employer from using the  
information that is made available to them -- to effectively defend himself or  
herself -- for some other purpose, including maybe finding a way of firing the  
employee because they learned something from this record.  
[63]  
The addition of subsection 95(1.1) clearly indicates an intention to restrict disclosure, but the  
exception in subsection (1)(c) demonstrates an intention to balance the worker’s privacy interest  
and the employer’s interest in fair participation in proceedings under the compensation and  
appeal provisions. Arguably, the debate could support either a narrow or a broad interpretation  
of “submission” in subsection 235(1.1), but on balance, it seems to more strongly support the  
conclusion that an employer may disclose information for the purposes of the appeal, but not for  
any other purpose.  
[64]  
[65]  
In general, statutory provisions that create offences are interpreted more strictly such that  
ambiguity is resolved in a way that limits rather than expands the scope of activity constituting  
an offence. A corollary is that where the ambiguity is in a provision that makes an exception to  
conduct that would otherwise be an offence, it should be resolved in a way that expands rather  
than restricts the exception. Accordingly, ambiguity in section 235(1)(c) should be resolved by  
interpreting “submission” broadly rather than narrowly.  
Considering all of the above, I find that a contextual reading of the words in  
subsection 235(1)(c), reinforced by the history of subsection 235(1) (formerly  
subsection 95(1.1), supports a conclusion that disclosure to Dr. Gosse was not contrary to  
subsection 235(1) of the Act. However, even if I am incorrect in my analysis, section 235(2)  
does not lead to the result that Dr. Grosse’s opinion is inadmissible. Further, while I have  
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