A precedent-setting finding that linked workplace bullying to the death of a group home worker on P.E.I. has been rejected by the Workers' Compensation Act Tribunal (WCAT).
The decision confirmed that Eric Donovan died from workplace stress, but concluded there wasn't enough evidence to prove his stress was due to bullying at work.
Donovan, 47, died on Nov. 11, 2013. He had a cardiac arrest shortly after arriving home from work at Queens County Residential Services (QCRS), a not-for-profit that runs nine group homes and several programs in Charlottetown for about 130 intellectually challenged adults.
The Workers' Compensation Board of P.E.I. (WCB) had ruled in 2016 that on the balance of probabilities "it is more probable than not that Mr. Donovan's death was a result of stress related to bullying and harassment in the workplace" but QCRS appealed that decision.
This latest decision by WCAT, which hears appeals of WCB decisions, says: "While the evidence here points to a strained relationship ... and while there is evidence that Mr. Donovan experienced significant stress at work, those reviewing Donovan's case didn't do enough to prove the connection between his death and workplace bullying."
The adjudicator, said WCAT, failed to follow the board policy of "reviewing, analyzing and weighing the evidence, or in making judgments about the nature, credibility and quality of the information."
"Not every unpleasant interaction, disrespectful behaviour or instance of workplace conflict will constitute bullying and harassment," the decision said, adding there was no evidence the WCB adjudicator conducted their own interviews or pressed "for specific examples of conduct/comments that would indicate bullying."
"It seems clear from the affidavits and from Mr. Donovan's notes, that he perceived that he had been bullied," the WCAT decision reads. "However, someone's perception that he/she is being bullied is not evidence that the other's behaviour meets the objective criteria for what constitutes bullying and harassment."
Widow disagrees with tribunal
Despite the tribunal's decision, Donovan's widow, Lisa, says she believes in her "heart and soul" that bullying caused her husband's death.
"This was out-and-out bullying and harassment and continuous bullying and harassment," Donovan told CBC.
She said her late husband talked to her regularly in the months leading up to his death about what he described as increased bullying at work, and made notes in a journal.
He also told several co-workers and physicians who signed affidavits that he'd shared with them that he was being bullied at work. Those affidavits and doctor reports were all considered in the 2016 ruling by WCB, but WCAT said most of their content was "hearsay and opinion evidence."
The tribunal's decision comes six years after Donovan's death and his widow's application for death benefits.
The case has been through numerous reviews over the years.
In 2014, after the WCB said it didn't have the jurisdiction to hear the claim, the case was heard in the P.E.I. Supreme Court and the Appeal Court of P.E.I., which ended up sending it back to the WCB.
In 2016, an adjudicator with WCB determined Donovan's death was linked to bullying. QCRS appealed that decision to a tribunal, which released its decision to the parties in August 2019, setting aside the link to workplace bullying and harassment.
The original decision was considered precedent-setting — the first case in Canada that connected a death to workplace bullying. It paved the way for the WCB to award death benefits to Lisa Donovan to cover funeral costs and survivor benefits.
QCRS accepts latest decision
QCRS declined an interview. In a statement to CBC News it says it accepts the latest decision and won't be asking for a judicial review of WCAT's findings.
"QCRS works to provide a safe workplace free from bullying and harassment. QCRS disputes any assertions to the contrary," the statement reads. "Mr. Donovan may well have been suffering considerable stress at work but it was not due to bullying or harassment by QCRS employees."
"This decision concludes a very difficult chapter for all involved."
The WCB also declined an interview and said it can't comment on specific decisions due to confidentiality.
However in a written statement to CBC News, it said there was an independent review in 2016 of the process involved in appealing decisions and, working with provincial officials, some improvements were made, "which included strengthening policy and communication throughout the claim process."
"The WCB strives to make timely and fair claim decisions based on legislation, policy and the weight of claim file evidence, acknowledging some cases are more complex than others," read the WCB statement.
Eric Donovan Act
The recent WCAT decision will not change the new regulations designed to better protect workers from bullying that will come into effect July 1, 2020 — because of Lisa Donovan's lobbying. The Eric Donovan Act includes harassment and bullying under the Occupational Health and Safety Act for the first time.
It defines harassment as "inappropriate conduct, comment, display, action or gesture or bullying that has a harmful effect on the worker's psychological or physical health or safety."
It requires workplaces to have a policy to deal with harassment complaints and sets out how independent investigations will be carried out, and allows for corrective action to be ordered.
However she said, the Act is a just piece of paper — it's going to take education for employees to know their rights, for employers to know their responsibilities, and support for those who fear repercussions if they make a complaint.
"People have to feel safe to come forward," Donovan said. "And if they don't it doesn't matter if you have a piece of paper with a policy on it."
Donovan told CBC News she had no idea when she first set out to make the claim for death benefits that it would take six years to get to this point.
"It was a very excruciating process to go through," she said. "This has completely changed the trajectory of my life."
I feel like I need to right this wrong - Lisa Donovan
She said she's not done yet — she plans to meet with her lawyer to consider whether to appeal the WCAT decision. She also intends to continue to lobby for tougher regulations and more consequences and accountability for those who bully or harass their employees.
"The WCB certainly did not make this an easy situation to navigate. They're a very bureaucratic system and they're not very user-friendly.
"I've lived it. I've experienced it and I don't wish it upon anyone," she said. "They talk about how user-friendly they want to be and it just hasn't been my experience. I would venture to guess it hasn't been a lot of people's experience."
Donovan says she feels compelled to push for more changes.
"I feel like I need to right this wrong that happened to Eric and this needs to be Eric's legacy. Because he wouldn't have wanted anyone else to go through what he went through," she said.
"I feel Eric's presence. I feel him pushing forward … We all have the right to feel safe and secure going to work every day whether that's physically or mentally or emotionally."