Written By Gabrielle Giroday | Canadian Lawyer

Lawyers and human resource departments should be aware of changes to Ontario law that expands coverage of workplace-related injuries related to chronic mental stress.

Sean Bawden, a partner with Kelly Santini LLP, says amendments to the Workplace Safety and Insurance Act will impact some Ontario employers and employees.

As of Jan. 1, 2018, some employees are eligible to make claims related to “chronic or traumatic mental stress arising out of and in the course of the worker’s employment.”

“This is a pretty massive shift to the way that the WSIB has operated,” Bawden  says.

“It’s now going to allow claims for, essentially, workplace harassment. . .how that’s going to play out is really yet to be seen.”

The changes stem from a 2014 decision by the Workplace Safety and Insurance Appeals Tribunal that found that the denial of WSIB benefits for claimants seeking chronic mental stress was unconstitutional, says Bawden.

He says that if a person has a claim for chronic mental stress that arises after the date of that decision, April 29, 2014, and has not been adjudicated, then it will be considered in accordance with a new allowance for claims for chronic mental stress.

The change was contained within Bills 127 and 177, which introduced some amendments to the Act.

Ryan Conlin, partner with Stringer LLP, says the “transitional rules introduced by Bill 177 allow workers to make retroactive claims for stress dating back to 2014 and open the door to reconsideration of claims that have not been adjudicated by the WSIAT.”

“This could result in significant claims costs for employers as historically the vast majority of mental stress claims were denied,” he says. “Employers need to be aware that the legal landscape has changed significantly for stress claims.”

Conlin says the change applies to all employers covered by the WSIB.

Bawden says there are different legal implications as a result of the changes.

“[The WSIB] policy with respect to burden of proof really kind of gives me some pause to the extent they’ll allow claims for workplace harassment and mental stress, but currently, they’re saying the door is open,” he says.
“And the flip side of that — which is perhaps not getting as much attention — is that because claims for chronic mental stress are now open through the WSIB, that means for most. . . employees, the ability to sue for such damages is of course closed by the act.”

Bawden also says the act applies to only some workers, depending on their industry and sector.

“The first thing that everybody needs to know is that the ability to make claims for these types of benefits is now open, because for a long time, the door was clearly closed on the chronic mental health claim,” he says. In the past, it might focus on a single traumatic incident, he says.

“It now allows for chronic build-up [of mental stress] over time, and so I think you’re going to see more chronic mental stress claims for sure to the board,” he says.

“What lawyers really need to be aware of is that given the ability to make such claims — and that’s retroactive to April 2014 — [that] those with civil suits making claims for such damages really now need to review whether or not the right to sue still exists, or whether or not that is in fact taken away by virtue of s. 28 of the Workplace Safety and Insurance Act.”