Employers have taken comfort from the fact that most provincial
workers' compensation agencies provide benefits for workplace
mental stress only in very limited circumstances. But that
comfort may about to be threatened, at least in BC. Earlier
this month, the BC Government introduced legislation that, if
passed, will expand workers' compensation coverage for mental
The Current Experience
As it stands now, a worker in BC is entitled to compensation for
mental stress not resulting from an injury for which the worker
would otherwise be entitled to compensation only if the mental
stress is an acute reaction to a sudden and unexpected
traumatic event arising out of and in the course of the
worker's employment. In addition, the condition:
has to be diagnosed by a physician or a psychologist and
described in the DSM-IV manual; and
cannot be caused by a decision 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 or to
discipline the worker or terminate the worker's
Other provinces like Ontario have similar language, the result
being that few claims for mental stress are compensable.
Potential Changes in BC
But that could all change if Bill 14 – 2011 Workers'
Compensation Amendment Act, 2011 is passed in BC.
Bill 14 would eliminate the requirement that the mental stress be
an acute reaction to a sudden and unexpected traumatic event
arising out of and in the course of the worker's employment. In
its place, a worker would have to demonstrate that the mental
stress is a reaction to:
one or more traumatic events arising out of and in the course
of the worker's employment; or
a significant work-related stressor, or a cumulative series of
significant work-related stressors, arising out of and in the
course of the worker's employment.
These amendments would change the landscape in two material
a BC worker would only have to show that one or a combination
of traumatic events has occurred without reference to an acute
reaction to a sudden and unexpected traumatic event. This appears
to be a legislative change meant to comply with the 2009 BC Court
of Appeal Plesner decision; and
an entirely new sub-category of mental stress would be created
in BC. If a worker could show that mental stress is a
reaction to a significant work-related stressor, or a cumulative
series of significant work-related stressors, arising out of and in
the course of the worker's employment, the worker could obtain
mental stress compensation.
The BC government has said that the old qualification, that
mental stress cannot be caused by a decision of the worker's
employer relating to the worker's employment, is supposed to
continue to apply.
Impact on Employers
How will this affect employers in BC? The BC government
has provided the following examples of mental stress claims that
would likely be compensable if Bill 14 is passed:
emergency service personnel who gradually develop
post-traumatic stress or another recognized stress disorder as a
reaction to the traumatic events they may regularly experience as
part of their job.
exposure to workplace violence or bullying.
ongoing sexual harassment.
What the BC government has not addressed, however, is whether
performance management issues and attendance management issues, for
example, may fall within the words "significant work-related
stressor(s)". As demonstrated in Plesner, it may be
that the Courts will ultimately determine the scope of coverage
that this statutory change brings.
Whether or not other provinces follow BC's lead remains to
be seen. We will keep you posted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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