Canada: Mental Stress Claim Limits Ruled Unconstitutional In Ontario

In a significant decision of the Ontario Workplace Safety & Insurance Appeals Tribunal ("WSIAT"), the statutory limits on workplace mental stress claims have been judged an unconstitutional breach of equality rights under s.15(1) of the Charter of Rights and Freedoms ("the Charter").

Ontario's Workplace Safety & Insurance Act ("WSIA") provides no fault compensation to workers who suffer injury or disease arising out of their employment.  The general rule is that any kind of ailment will be insured under the Act, but reforms in 1998 restricted entitlement in particular circumstances:

Exception, mental stress

13 (4)  Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.


13 (5)  A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.  However, the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions 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. 1997, c. 16, Sched. A, s. 13.

In WSIAT Decision 2157/09, released on April 29, 2014, the legality of these entitlement restrictions was put to the test.  The facts of the case involve a nurse subjected to abusive behaviour at work for a period of 12 years. She suffered mental health effects but her claim for benefits under the WSIA was repeatedly denied by the Workplace Safety & Insurance Board ("the Board") because the ailment did not arise as "an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment"  as required in subsection 13(5).

The worker appealed the decision and a three-member panel of the Tribunal heard the case over several days in 2013.  The Panel's decision 78-page ruling includes an examination of the history of workers' compensation, the purposes of the mental health exception in section 13, the historical prejudice against mental illness and ultimately, how Charter jurisprudence applies.  The decision gives considerable attention to the historical injustice visited upon persons with mental health conditions and very bluntly identifies the mental stress exception as an example of that injustice.

A summary description of the Tribunal ruling is this:

  • The statutory provisions create a distinction between different types of disability, in particular a distinction based on mental disability;
  • The provisions discriminate against persons with mental illness, by denying access to no-fault compensation and perpetuating false stereotyping;
  • The ability to sue privately for these injuries was insufficient to offset the disadvantage to workers, who ordinarily had the benefit of the no fault workers' compensation system;
  • Creating inequality that amounted to an infringement on equality rights under the Charter, the provisions were not saved by their alleged purpose (containing costs imposed on the Accident Fund) nor was the limitation on mental health claims proportional to that alleged purpose.

Consequently the Tribunal held that the mental stress exception constituted an unjustifiable infringement on equality rights under the Charter.  Based on that conclusion, the Panel declined to apply subsections 13(4) and (5) of the Act and allowed the worker's appeal.


While individual Panel rulings at the WSIAT do not bind other Panels, it is likely that the lengthy and comprehensive assessment of the mental stress issue in Decision 2157/09 constitutes the Tribunal's new standard.  What this may mean in Ontario is:

  • Any new mental stress claim will be adjudicated by the Tribunal, in the same fashion as any other claim;
  • Given that the mental stress exception is 14 years old, there may be a huge number of past litigants who will now look for a re-adjudication of their cases;
  • There is no obvious principled basis for the Board or Tribunal to refuse to re-visit those cases.  Certainly the Tribunal would have difficulty doing so;
  • Thus, any mental stress claim previously denied on the basis of subsections 13(4) and (5) may now be raised again, within the Board or at the Tribunal;
  • Any mental stress claim previously denied at the Tribunal, based on these provisions, is now fodder for a "reconsideration" request by past unsuccessful claimants.

Ontario trade unions, plaintiffs' counsel and workers advocacy groups will likely move quickly to revive old cases and to bring forward new ones.   Ontario employers, which pay premiums to support the Accident Fund, can anticipate escalating costs of claims and of course, the burden of managing and litigating those claims.  

In addition, the new ruling by the Tribunal will itself likely be contested by the Government of Ontario, which unsuccessfully defended the mental stress exception in the case.  The first stop for such a challenge is judicial review.   Such a challenge would undoubtedly scrutinize the Charter analysis done by the Tribunal.   

There is also the question of whether the Tribunal had the legal authority to take this approach to the provision.  When Ontario's Legislative Assembly passed the mental stress exception in 1998, it also enacted a strict limit on the Tribunal's independence:

Board policies

126.  (1)  If there is an applicable Board policy with respect to the subject-matter of an appeal, the Appeals Tribunal shall apply it when making its decision.

The Board has a longstanding policy pertaining to subsections 13(4) and (5) of the Act, a policy which assumes the constitutional legality of the statute and which offers guidance on how to apply the mental stress limitations in cases.  In Decision 2157/09, the Tribunal has given short shrift to this restraint on its independence and, by finding the provisions contrary to the Charter, has of course failed to abide by Board policy. 

Ontario's workers' compensation system would now appear to be open to mental stress claims hitherto denied by the Act.   Whether this opens a floodgate of old and new claims remains to be seen; one result, almost guaranteed, is that the issue will now be engaged by stakeholders and the Government of Ontario in what will be lengthy and complex legal proceedings for some years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.