Friday, 5 January 2018

Workers Now Eligible for WSIB Benefits for Chronic Mental Stress and Workplace Harassment

(c) istock/AntonioGuillem

On May 17, 2017, the Stronger, Healthier Ontario Act (Budget Measures), 2017, S.O. 2017 C.8 , formerly Bill 127, received Royal Assent. That act, which was omnibus legislation, amended no fewer than 48 statutes, including the Workplace Safety and Insurance Act, 1997. This post will focus on the changes to that statute.

Pursuant to Schedule 33 of the Stronger, Fairer Ontario Act (Budget Measures), 2017, employees eligible for Workplace Safety and Insurance Board (“WSIB”) benefits, are now eligible to make claims for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment”

On December 14, 2017, the Stronger, Fairer Ontario Act (Budget Measures), 2017, S.O. 2017 C.22, formerly Bill 177, received Royal Assent. That act, which was also omnibus legislation, amended no fewer than 110 statutes, including the Workplace Safety and Insurance Act, 1997. This statute further amended the Workplace Safety and Insurance Act, 1997 with respect to claims for chronic or traumatic mental stress.

Bill 127

It is important to get the wording of the new legislation correct, so here is what Schedule 33 of the Stronger, Healthier Ontario Act (Budget Measures), 2017 (Bill 127) actually says:

Subsections 13 (4) and (5) of the Workplace Safety and Insurance Act, 1997 are repealed and the following substituted:

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Pursuant to subsection 9(4) of that act, such changes were not to come into effect until January 1, 2018.

Bill 177

As set out above, Schedule 45 of the Stronger, Fairer Ontario Act (Budget Measures), 2017 (Bill 177) further amended section 13 of the Workplace Safety and Insurance Act, 1997 by adding the following subsection:

(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident.

The Act was further amended by adding new section 13.1, which provides as follows:

13.1 (1) The rules set out in subsections (2) to (9) apply for the purposes of determining entitlement to benefits under subsection 13 (4).

(2) If a worker’s mental stress occurs on or after April 29, 2014 and the worker has not filed a claim in respect of entitlement to benefits for mental stress before January 1, 2018, the worker or the worker’s survivor may file a claim for entitlement to benefits for mental stress with the Board and the Board shall decide the claim in accordance with subsection 13 (4) as it reads at the time the Board makes its decision.

(3) Subject to subsection (9), if a worker filed a claim for entitlement to benefits for mental stress and the claim was denied by the Board or by the Appeals Tribunal before January 1, 2018, the worker may not refile the claim under this section.

(4) The time limits in subsections 22 (1) and (2) do not apply in respect of a claim that is filed under subsection (2) that is made in respect of mental stress that occurred on or after April 29, 2014 and before January 1, 2018.

(5) A claim filed under subsection (2) that is made in respect of mental stress that occurred on or after April 29, 2014 and before January 1, 2018 must be filed on or before July 1, 2018.

(6) If a worker or a survivor has filed a claim for entitlement for mental stress within the time limits set out in subsection 22 (1) or 22 (2), or pursuant to an extension of time granted by the Board under subsection 22 (3), and the claim is pending before the Board on January 1, 2018, the Board shall decide the claim in accordance with subsection 13 (4) as it reads at the time the Board makes its decision, regardless of the date on which the worker’s mental stress occurred.

(7) For the purposes of subsection (6), a claim is pending on January 1, 2018 if,

(a) the Board had not yet made a decision in respect of the claim by that day; or

(b) the Board had not yet made a final decision in respect of the claim by that day. Pending appeal

(8) If a worker or a survivor has filed a claim with the Board for entitlement to benefits for mental stress within the time limits set out in subsection 22 (1) or 22 (2), or pursuant to an extension of time granted by the Board under subsection 22 (3), and the claim is pending before the Appeals Tribunal on January 1, 2018, the Appeals Tribunal shall refer the claim back to the Board and the Board shall decide the claim in accordance with subsection 13 (4) as it reads at the time the Board makes its decision, regardless of the date on which the worker’s mental stress occurred.

(9) If, on or after January 1, 2018 and within the time limit set out in subsection 125 (2), a worker or a survivor files a notice of appeal of a final decision of the Board made before January 1, 2018 regarding a claim for entitlement to benefits for mental stress with the Appeals Tribunal, the Appeals Tribunal shall refer the claim back to the Board and the Board shall decide the claim in accordance with subsection 13 (4) as it reads at the time the Board makes its decision, regardless of the date on which the worker’s mental stress occurred.

Why the Law Was Changed

Some may wonder as to the significance of April 29, 2014, referenced in the law. The date is significant because that was the date on which the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) released Decision No. 2157/09.

In Decision No. 2157/09, which I proclaimed as my number one decision of importance to Ontario employment law in my 2014 List of Top Five Cases of Importance to Ontario Employment Law, WSIAT found that the previous prohibition in subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997 against claims by workers for mental stress to be unconstitutional.

I wrote about that decision not only in my annual summary, but also in the post WSIAT Says Prohibition Against Mental Stress Claims is Unconstitutional. I will not repeat either post as they are truly dense dives into the legal analysis behind the WSIAT’s finding of unconstitutionality.

Chronic Mental Stress Policy (Policy 15-03-14)

With respect to the issue of chronic mental stress, on which subject this post will focus, as compared to traumatic mental stress, the WSIB has prepared an Operational Policy document: (Policy 15-03-14).

That Operational Policy, which is not law, provides (in part) as follows with respect to claims for chronic mental stress:

A worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.

A claim for chronic mental stress made by a worker employed in an occupation, or a category of jobs within an occupation, reasonably characterized by a high degree of routine stress should not be denied simply because all workers employed in that occupation, or category of jobs within that occupation, are normally exposed to a high level of stress. In some cases, therefore, consistent exposure to a high level of routine stress over time may qualify as a “substantial” “work-related stressor”.

In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress. This means that the event(s) can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others.

A worker is not entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a “substantial” “work-related stressor” arising out of and in the course of the worker’s employment.

The term “work-related stressor” is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors.

A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.

Workplace harassment will generally be considered a substantial work-related stressor

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Interpersonal conflicts

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict:

  • amounts to workplace harassment, or
  • results in conduct that a reasonable person would perceive as egregious or abusive.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor

  • arose out of and in the course of the worker’s employment, and
  • was the predominant cause of an appropriately diagnosed mental stress injury.

For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury - as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

Diagnostic requirements

Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

  • acute stress disorder
  • posttraumatic stress disorder
  • adjustment disorder, or
  • an anxiety or depressive disorder.

Employers’ decisions or actions relating to employment

There is no entitlement for chronic mental stress caused by an employer’s decisions or actions that are part of the employment function, such as

  • terminations
  • demotions
  • transfers
  • discipline
  • changes in working hours, or
  • changes in productivity expectations.

However, workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as

  • amounts to workplace harassment, or
  • results in conduct that a reasonable person would perceive as egregious or abusive.

Implications for Workers

Some may see the inclusion of the right to make claim to the WSIB for chronic mental stress as a win for employees. While time will eventually tell whether the same is true, it is important to appreciate the very immediate effects of this legislation.

As WSIAT Vice Chair Garth Dee explained in his reasons for decision in Decision No. 2678/17:

[6] Workers’ compensation in Ontario is often described as being the result of an historic bargain between the workers and employers of the province.

[7] As a result of this bargain, workers in the province have a right to receive benefits for work-related injuries regardless of whether they may have been fully or partially responsible for those injuries and regardless of whether or not the injuries were the result of the employer’s negligence.

[8] The other side of this bargain is that employers cannot be sued by their workers for negligence where the employer’s negligence may have been the cause of those work-related injuries.

The specific legislative provisions that limit the ability of workers and their survivors to sue employers are found sections 26-30 of the Workplace Safety and Insurance Act. Those sections provide as follows:

26 (1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.

(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.

27 (1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan.

(2) If a worker’s right of action is taken away under section 28 or 29, the worker’s spouse, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act.

28 (1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

  1. Any Schedule 1 employer.
  2. A director, executive officer or worker employed by any Schedule 1 employer.

(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

  1. The worker’s Schedule 2 employer.
  2. A director, executive officer or worker employed by the worker’s Schedule 2 employer.

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.

(4) Subsections (1) and (2) do not apply if any employer other than the worker’s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment.

29 (1) This section applies in the following circumstances:

  1. In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
  2. In an action by or on behalf of a worker employed by a Schedule 2 employer or a survivor of such a worker, the worker’s Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.

(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages.

(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action.

(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action.

30 (1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease.

(2) The worker or survivor shall elect whether to claim the benefits or to commence the action and shall notify the Board of the option elected.

(3) If the worker is or was employed by a Schedule 2 employer, the worker or survivor shall also notify the employer.

(4) The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death.

(5) The Board may permit the election to be made within a longer period if, in the opinion of the Board, it is just to do so.

(6) If an election is not made or if notice of election is not given, the worker or survivor shall be deemed, in the absence of evidence to the contrary, to have elected not to receive benefits under the insurance plan.

(7) If the worker or survivor is less than 18 years of age, his or her parent or guardian or the Children’s Lawyer may make the election on his or her behalf.

(8) If a worker is mentally incapable of making the election or is unconscious as a result of the injury,

(a) the worker’s guardian or attorney may make the election on behalf of the worker;

(b) if there is no guardian or attorney, the worker’s spouse may make the election on behalf of the worker; or

(c) if there is no guardian or attorney and if no election is made within 60 days after the date of the injury, the Public Guardian and Trustee shall make the election on behalf of the worker.

(9) If a survivor is mentally incapable of making the election,

(a) the survivor’s guardian or attorney may make the election on behalf of the survivor; or

(b) if there is no guardian or attorney and if no election is made within 60 days after the death of the worker, the Public Guardian and Trustee shall make the election on behalf of the survivor.

(10) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 1 employer or the deceased worker was so employed, the Board is subrogated to the rights of the worker or survivor in respect of the action. The Board is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms.

(11) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the worker or survivor in respect of the action. The employer is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms.

(12) If the Board or the employer pursues the action and receives an amount of money greater than the amount expended in pursuing the action and providing the benefits under the insurance plan to the worker or the survivor, the Board or the employer (as the case may be) shall pay the surplus to the worker or survivor.

(13) Future payments to the worker or survivor under the insurance plan shall be reduced to the extent of the surplus paid to him or her.

(14) The following rules apply if the worker or survivor elects to commence the action instead of claiming benefits under the insurance plan:

  1. The worker or survivor is entitled to receive benefits under the insurance plan to the extent that, in a judgment in the action, the worker or survivor is awarded less than the amount described in paragraph 3.
  2. If the worker or survivor settles the action and the Board approves the settlement before it is made, the worker or survivor is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement is less than the amount described in paragraph 3.
  3. For the purposes of paragraphs 1 and 2, the amount is the cost to the Board of the benefits that would have been provided under the plan to the worker or survivor, if the worker or survivor had elected to claim benefits under the plan instead of commencing the action.

(15) For the purpose of determining the amount of benefits a worker or survivor is entitled to under subsection (14), the amount of a judgment in an action or the amount of a settlement shall be calculated as including the amount of any benefits that have been or will be received by the worker or survivor from any other source if those benefits,

(a) have reduced the amount for which the defendant is liable to the worker or survivor in the action; or

(b) would have been payable by the defendant but for an immunity granted to the defendant under any law.

Whether an employer is a “Schedule 1 employer”, a “Schedule 2 employer” or not even covered by the Workplace Safety and Insurance Act at all can be more complicated than I want to get in to at the moment. According to The Office of the Worker Advisor:

The Act contains lists of types of industries and these lists are called Schedule 1 and Schedule 2. A worker employed in an industry or business listed in Schedule 1 or Schedule 2 of the Act is automatically covered.

Schedule 1 Industries include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades; and construction.

A variety of service industries are covered by the Act, including temporary agencies, hospitality and full-time domestic workers.

Schedule 2 Industries include (but are not limited to): provincial governments; railways; and telephone companies licensed by the federal government. Although municipal governments are listed in Schedule 2, some have opted to become Schedule 1 employers.

Some employers can make an application to the WSIB to be treated like a covered industry. “By application” industries include (but are not limited to): financial institutions; health care practitioner practices; trade unions; private day cares; and travel agencies.

If you are not sure whether your employer is covered by the Act, you can look at the complete list of Schedules found at the end of Ontario Regulation 175/98. You can also call the WSIB and ask if your employer is covered.

All of that to say, if the worker is employed by a Schedule 1 employer, the worker now cannot sue any of the following for the causation of chronic mental stress:

  • Any Schedule 1 employer.
  • A director, executive officer or worker employed by any Schedule 1 employer.

It is perhaps even more important to note, as Vice Chair Dee recognized in Decision No. 2678/17:

[13] … Although the WSIB has denied the plaintiff entitlement for ALS because it did not accept that workplace exposures had caused the ALS the applicant relied on case law (in particular Decision No. 1241/16) of the Tribunal to establish that:

…the appropriate test to be applied in determining whether the worker has a right to claim benefits under the Board’s insurance plan is whether the allegations, if proven, would lead to the conclusion that the worker is entitled to benefits under the Act.

[14] I see no reason to depart from the approach taken in Decision No. 1241/16. It is clear that if the plaintiffs are able to establish that the deceased’s workplace exposures had caused her ALS, the deceased (or her eligible survivors) would have been able to establish entitlement to workers’ compensation benefits under the Act.

Which is to say, you don’t have to actually win before the WSIB in order for the civil right of action to be taken away; it only has to be possible. Put another: if an employee is employed by a Schedule 1 employer and is able to establish that he or she should be eligible for WSIB benefits for chronic mental stress, then the employee cannot sue any Schedule 1 employer, and any employee of any Schedule 1 employer, even if the WSIB ultimately denies the worker’s claim for benefits.

Commentary

I have written about the issue of workplace stress and harassment for several years now. In 2010 I presented a major paper on the subject titled Sick of Work? The Legal Minefield of Workplace Burnout. In that paper, and in my earlier blog posts, I argued that the previous state of Ontario’s tort laws left employees suffering from chronic mental stress without remedy.

In that respect, the changes to the Workplace Safety and Insurance Act may well be a blessing for employees without other remedy or recourse. At this time, it appears possible that employees who have been subject to chronic workplace stress may be able to apply to the WSIB for some form of benefit. What the WSIB and the WSIAT do with this new entitlement is yet to be seen.

The most immediate effect of this legislative change, however, is likely to be applications to the WSIAT by employers, who find themselves defendants in civil actions where claims for damages for chronic mental stress are made. Employees will have to be mindful of what claims are made to Ontario’s courts against their employer and co-worker.

To my own mind, and I am just speculating here, the fact that an employee has been subject to workplace harassment can likely still form the basis of a constructive dismissal claim, i.e. the workplace harassment can still be pointed to as the breach of the employment agreement. Moreover, on my reading of Piresferreira v. Ayotte, 2010 ONCA 384, the employee can still attach to such a constructive dismissal claim a claim for aggravated damages for the manner of dismissal. What the employee can likely no longer do is claim tort damages for the tort of harassment, which was only recently recognized by the Ontario court and about which I wrote in my post: Ontario Superior Court Awards $100,000 in General Damages for Tort of Harassment.

Where do we go next with this change in the law? The same is yet to be seen.

Takeaways for Employees with Labour Pains

Here is the key takeaways for employees: If you are otherwise eligible for the receipt of WSIB benefits (i.e. you work for a Schedule 1 or Schedule 2 employer) and you believe you meet the criteria to make application for chronic mental stress, you must file an application for benefits with the WSIB by the later of July 1, 2018, and six months after you receive a diagnosis from your treating healthcare professional.

If you are a worker looking for assistance with respect to your application for WSIB benefits, consider contacting the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Takeaways for Employers with Labour Pains

The takeaway for employers is that they will have to be more mindful of the circumstances giving rise to chronic mental stress claims.

The flipside is that employers who are already involved in litigation may wish to consider an application to WSIAT to have such litigation stayed on the basis that the right to sue is taken away.

If you are an employer and you find yourself involved in a case of a claim of chronic mental stress, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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