Employers should be thinking about how they can prevent bullying and harassment in the workplace after the provincial government expanded workers compensation law to include claims for chronic mental stress, says a Toronto lawyer.
In May, Bill 127, the Stronger, Healthier Ontario Act received Royal assent, allowing claims for Workplace Safety and Insurance Board benefits from individuals who suffer from chronic mental stress in the course of their employment.
The bill takes effect in January, but in the meantime, the WSIB has released a policy that explains when it will approve claims. According to the policy, any worker who can show they have a “diagnosed mental stress injury” caused by a “substantial work-related stressor,” which includes bullying and harassment, is entitled to benefits.
“I think that employers need to take preventative measures to make sure these claims don’t arise in the first place,” says William Goldbloom, a lawyer with Toronto-based employment law boutique Rubin Thomlinson LLP.
Before Bill 127 amended the Workplace Safety and Insurance Act, compensation for workplace mental injuries was only available in cases stemming from a single traumatic event, such as witnessing a horrific accident.
The previous version of the act specifically excluded all other mental injuries, including chronic stress that builds up over time, prompting a series of Charter challenges alleging the law was discriminatory.
Goldbloom, who conducts workplace investigations and training as part of his practice, says the provincial government’s belated action on the issue could result in a wave of fresh claims from workers who would previously have been put off by the legal barriers.
The changes have flown under the radar of many employers, he says, but more should be paying attention.
“Most of the discussion so far has been among lawyers, and I’m not sure it has totally filtered down to employers,” he says.
“They are aware of the WSIB and the fact that their rates may go up as a result of claims, but it doesn’t have the same direct impact as a big civil action for constructive dismissal.”
Still, a WSIB claim can be an intrusive process for employers, according to Goldbloom, who says they can head off trouble before it starts by conducting a thorough assessment of the risk of harassment or bullying in their workplace.
“Even if you feel your workplace is free from harassment and bullying, an assessment may still need to be done, because these are problems that are often invisible to management,” he says.
Although the Occupational Health and Safety Act requires employers to investigate internal complaints of harassment, Goldbloom says a reactive approach is risky, because workers can suffer stress and make WSIB claims without ever alerting management via a complaint.
“If employers are proactive, they can start managing workplace dynamics themselves, without the involvement of a third party, which might make it easier or more comfortable,” Goldbloom says.
Antony Singleton, a Toronto lawyer who acts for injured claimants before the WSIB, says the legal bar on mental stress claims was a longstanding source of displeasure for workers’ groups.
On three occasions since 2014, claimants have convinced the Workplace Safety and Insurance Appeals Tribunal that the law was unconstitutional. However, after each decision, the provincial attorney general declined to appeal the ruling. And since the WSIAT has no power to strike down legislation, claimants with mental stress injuries are forced to start again from the beginning with their own expensive and lengthy Charter challenges.
Singleton says Bill 127 appeared to be a “step in the right direction” but the WSIB’s new policy for putting the law into action has only angered workers’ advocates further.
For example, it makes no provision for any individuals with claims that pre-date the Jan. 1 in-force date for the amendments.
“There are lots of people with injuries that arose before now, many of whom have already been denied benefits or are somewhere else in the appeals system,” Singleton says. “The law leaves them in exactly the same place as before — they’re barred from making claims by legislation that the tribunal has already found unconstitutional several times.”
A Superior Court application led by Toronto labour law firm Goldblatt Partners LLP aims to plug that gap in the new law. Acting on behalf of the Ontario Network of Injured Workers Groups and Injured Workers Consultants, as well as an individual claimant, the firm wants a judge to declare the bar on mental claims invalid for all claims relating to accidents before January 2018. The application also seeks an order that the WSIB and WSIAT assess the claims as if the prohibition did not exist.
After consulting with industry and worker groups, the WSIB policy on chronic mental stress also tightened up the requirements for proving a claim.
The board’s initial draft policy mirrored its stance on physical injuries, by requiring that the workplace stressor, such as bullying or harassment, must have “caused or significantly contributed to the chronic mental stress” in order to meet the test for benefits. However, the final policy now requires claimants to show that the work-related stressor “was the predominant cause” of the mental injury.
“This is a significantly higher threshold than for physical injuries, and in my view, the differential treatment is discriminatory. It’s not justified,” Singleton says.
In addition, workers must prove they have a properly diagnosed mental stress injury listed in the Diagnostic and Statistical Manual of Mental Disorders, also known as the psychiatrists’ bible.
In a statement to Law Times, WSIB spokeswoman Christine Arnott said the “predominant” test is “consistent with other workers’ compensation boards across Canada who are already covering chronic mental stress.”
Singleton says that puts the WSIB on a different course from the Supreme Court of Canada, which just this summer ruled expert evidence is not needed to prove a mental injury in the personal injury case of Saadati v. Moorhead.
The new policy also narrows the number of routinely high-stress-level jobs that can qualify as substantial work-related stressors by virtue of their normal responsibilities, Singleton says.
“They did this consultation and had a huge number of worker and employer groups give their feedback,” he says. “But as far as I can see, every change to the draft policy was to make it more difficult to meet the threshold for entitlement.”