 |
| Tega Adjara |
The phenomenon of moral injury, first identified among soldiers returning from combat, refers to the profound distress suffered when one’s actions, or required inaction, violate deeply held moral or ethical beliefs. Police officers, health care workers, lawyers and social service professionals are not merely exposed to occupational stress; they are often compelled to act in ways that erode their moral identity. The question, therefore, is whether such moral injury should be compensable within the legal frameworks that already recognize psychological harm.
Understanding moral injury
Dr Jonathan Shay, the American psychiatrist who first coined the term, described moral injury as “a betrayal of what is right, by someone who holds legitimate authority, in a high-stakes situation” (Achilles in Vietnam: Combat Trauma and the Undoing of Character (New York: Scribner, 1994). Unlike post-traumatic stress disorder, which arises primarily from fear or threat, moral injury stems from guilt, shame and ethical dissonance. It strikes not the body nor the mind but the conscience itself.
In Canadian law, the concept of psychological injury has moved beyond rigid diagnostic requirements. The Supreme Court of Canada in Saadati v. Moorhead, 2017 SCC 28 held that proof of a recognizable psychiatric illness is unnecessary for damages in negligence, signalling that the courts are prepared to acknowledge forms of harm that fall outside traditional medical classification. Yet moral injury remains beyond compensation, not because it lacks substance, but because it unsettles the law’s traditional discomfort with subjective moral experience.
Alberta’s Workers’ Compensation Act provides that “where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid” (Workers’ Compensation Act, RSA 2000, c. W-15, s. 21(1)). This has been interpreted to include psychological injuries resulting from traumatic events (Alberta (Workers’ Compensation Board) v. Appeals Commission (Millard), 2013 ABQB 308). However, moral injury frequently arises not from a single traumatic event but from repeated exposure to ethically distressing circumstances, an erosion rather than a rupture.
The law’s uneasy relationship with conscience
The common law has long relied on the standard of the reasonable person, a figure that privileges objectivity over conscience. English law, however, has occasionally permitted conscience to guide duty. In Walker v. Northumberland County Council [1995] 1 All ER 737 (QB), the High Court of Justice recognized that an employer owed a duty of care to protect an employee from psychiatric injury caused by workplace stress. Although Walker addressed overwork rather than moral conflict, it was among the first cases to acknowledge mental suffering as a foreseeable occupational risk.
Australian jurisprudence followed similar reasoning. In Koehler v. Cerebos (Australia) Ltd., (2005) 222 CLR 44 (HCA), the High Court accepted that psychiatric injury caused by foreseeable workplace conditions could ground liability, though it cautioned against unbounded duties. The Australian Department of Defence now formally distinguishes moral injury from post-traumatic stress disorder and has implemented clinical and institutional responses to it.
In the United States, the Department of Veterans Affairs recognizes moral injury as a measurable psychological phenomenon. While not yet a statutory cause of action, its inclusion in official rehabilitation programs demonstrates that governments are beginning to accept conscience-based harm as legitimate.
Canada, however, has yet to adopt such recognition within its legal framework. The failure to do so risks leaving entire categories of workers without redress for profound moral and psychological suffering.
The Alberta and Ontario contexts
In Alberta, the Workers’ Compensation Board (WCB) compensates psychological injuries where they arise from an acute reaction to a traumatic event or persistent harassment. However, the scope does not yet extend to moral or ethical distress that arises from the performance of professional duties. A police officer ordered to use lethal force, or a child protection worker ordered to separate siblings against their professional judgment.
The Alberta Court of Queen’s Bench in Re Alberta (Workers’ Compensation Board), 2012 ABQB 733 at paras. 41-44 recognized that psychological injury may arise from employment even in the absence of physical harm, provided the harm was foreseeable and materially contributed to by the employment. By this reasoning, moral injury could satisfy the same causal threshold.
Ontario provides further insight into how psychological and moral harm may be integrated into workplace compensation frameworks. Under Ontario’s Workplace Safety and Insurance Act, 1997, the Workplace Safety and Insurance Board (WSIB) has expanded compensability for chronic mental stress arising from substantial work-related stressors, including ethical distress. The 2018 decision in Decision No. 1945/10, WSIB Ontario acknowledged that psychological harm need not stem from physical injury, provided there is demonstrable causation and workplace connection.
Ontario’s jurisprudence also reflects a progressive understanding of mental and moral harm. In Piresferreira v. Ayotte, 2010 ONCA 384, the Ontario Court of Appeal recognized the legitimacy of workplace mental distress but limited claims to those that met established tort thresholds. Later cases, such as Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, reaffirmed that employers owe a duty of care to prevent foreseeable psychological harm. These cases collectively suggest that Canadian courts, and particularly those in Ontario, are prepared to evolve the legal concept of injury to encompass ethically derived suffering.
The contrast between Alberta and Ontario illustrates that recognition of moral injury is not a radical leap but a natural extension of existing jurisprudence on workplace mental health. Where Ontario’s WSIB policy allows compensation for chronic stress, Alberta could similarly adapt its framework to acknowledge conscience-based injury.
Why moral injury should be recognized in law
The legitimacy of the law depends on its capacity to reflect human dignity in all its dimensions. To deny recognition of moral injury is to reduce the concept of legal harm to the measurable and the visible, while ignoring the moral anguish that corrodes professional integrity.
Sceptics often cite evidentiary difficulty, questioning how moral harm can be proven without descending into relativism. Yet, courts already evaluate subjective harms such as emotional distress or loss of enjoyment of life. The Supreme Court in Saadati expressly accepted experiential evidence as sufficient proof of mental harm (Saadati, supra note 2 at paras. 31-36). A similar evidentiary approach could apply to moral injury, supported by credible psychiatric assessment or occupational documentation.
Recognizing moral injury also serves a preventative function. The compensatory purpose of law is not only to redress but to deter. Acknowledging moral injury would encourage institutions to develop ethical support systems and training, particularly in professions where moral compromise is inherent.
If a nurse is injured by a contaminated needle, compensation is automatic. If that same nurse is ordered to deny treatment due to cost or policy constraints and experiences moral suffering, the harm is no less authentic. Both arise from the performance of employment duties.
Towards a law of conscience
Moral injury challenges the law to confront its own ethical reflection. If the law cannot protect the moral integrity of those who serve within its boundaries, it fails its core promise of justice. Recognition of moral injury would not open the floodgates to frivolous claims. Instead, it would mark a mature and compassionate understanding of human experience.
Canada is poised for this evolution. The Supreme Court has already moved beyond strict psychiatric definitions of harm. Both Ontario’s and Alberta’s statutory frameworks could accommodate moral injury through interpretive adaptation. Administrative bodies such as the WCB and WSIB could create policies that recognize conscience-based distress as a compensable psychological injury.
In time, the common law will follow its own humane logic. The conscience, long neglected in the realm of compensable harm, deserves its rightful place in the architecture of justice.
Until then, those who carry the moral burdens of their professions — soldiers, police officers, nurses, lawyers and others — remain the unacknowledged casualties of ethical conflict. The law should no longer avert its eyes.
After completing his LLB at the University of East London, Tega Adjara pursued a specialized LLM in international law and the global economy. Currently, he is working for the Alberta government sentencing department.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.