For years, those of us that practice in the area of Employment Law have taken it as a given: if you suffer from mental distress caused by circumstances in the workplace, you cannot bring a Workplace Safety and Insurance Board (WSIB) claim except in very limited circumstances. Unlike physical injuries, WSIB would not cover psychological or emotional damage, even if it could be shown to be a workplace injury. That has now been called into question, as a Workplace Safety and Insurance Appeals Tribunal found that the statutory provision limiting the entitlement to benefits for mental distress is inconsistent with the Charter of Rights and Freedoms and, therefore, unconstitutional.
Subsections 13 (4) and (5) of the Workplace Safety and Insurance Act provide that a worker is not entitled to collect benefits for mental distress unless it was caused by an acute reaction to a sudden and unexpected event arising out of and in the course of his or her employment. Decision No. 2157/09, released recently, considered subsections 13 (4) and (5) of the Act, and the WSIB’s Traumatic Mental Stress Policy, in the context of a claim brought by a nurse who alleged that she had been bullied and abused by a doctor in the hospital over a 12 year period. She had been diagnosed with an adjustment disorder, anxiety, and depression brought on by workplace stressors. The Tribunal found that they treat workers with mental disabilities differently than workers with physical disabilities. As a result, the Tribunal disregarded the legislation and allowed the appeal of the original decision, in which benefits were denied.
In the course of argument, the Tribunal rejected the Ontario attorney general’s argument that there was no way to establish causation between mental-health issues and workplace factors.
The decision has sparked controversy among the Employment Law Bar along with warnings that it may have a dramatic change in the manner of compensation for workers suffering from work-induced mental distress. Not only might this decision, which, it should be noted, is not binding on future decision-makers, change the contexts in which WSIB benefits will be awarded, it may impact civil claims. Currently, many civil lawsuits seek damages for emotional distress in the context of a wrongful dismissal claim. If the plaintiff would be entitled to WSIB benefits due to the same factual background, however, then they may not be entitled to seek such damages in civil court. This can also impact the availability of moral, punitive and aggravated damages. Conceivably, plaintiffs with current claims may even have to consider retroactively applying for WSIB benefits.
As indicated above, this decision is not binding on future cases, but it is instructive, at the very least. Some have welcomed it, including leading employment lawyer and mediator Peter Israel, who calls it “overdue”. Others have expressed concern about potential abuse by employees who may now be able to seek WSIB benefits by claiming injuries that are easier to fake.
Regardless of whether counsel view the decision as a good one, it must be borne in mind as we advise our clients, as it may mark the beginning of a new era in Employment Law. Workers suffering from bullying or other abuse at work may be entitled to benefits for mental distress as well as accommodation by being placed in a different position. Employment Law Counsel must be aware of these options in advising employees, and when advising employers, must point out the changing risks and remedies.