In a decision released April 29, 2014,
the Workplace Safety and Insurance Appeals Tribunal
("WSIAT") declared certain provisions of the Ontario
Workplace Safety and Insurance Act ("WSIA")
The decision (indexed as December No. 2157/09) involved a nurse
who was diagnosed with a psychological adjustment disorder which
was attributed to workplace stressors. The claimant experienced
ongoing harassment from a doctor over a 12 year period. The
harassment included yelling and demeaning her in front of
colleagues. The worker was effectively demoted when her workplace
responsibilities were reduced after she raised her concern
regarding the mistreatment with her team leader. The nurse was
unable to continue working.
The workers' claim was denied by
the Ontario Workplace Safety and Insurance Board ("WSIB")
and the WSIB Appeals Branch as section 13 (4) and (5) of the WSIA
and the WSIB's traumatic mental stress policy limits claims for
mental stress to those who have experienced "an acute reaction
to a sudden and unsuspected traumatic event". Subsections
13(4) and (5) of the WSIA provide as follows:
13(4) Except as
providing in subsection (5), a worker is not entitled to benefits
under the insurance plan or mental stress.
(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 worker appealed the decision to the
WSIAT on the basis that the applicable provisions of the WSIA
violated her rights to equality as guaranteed by the Charter of
Rights and Freedoms. After hearing conflicting medical
evidence, the WSIAT concluded that there was a moderate causal
connection between job strain and mental disorders. The WSIAT held
that the relevant provisions of WSIA create a distinction based on
mental disability as they prevent workers with mental illness from
establishing a claim based on restrictions that are not imposed on
workers with physical injuries. Specifically, a worker with a
physical injury is not required to establish that the injury was
caused by a sudden and unexpected event. The WSIAT also found that
provisions were discriminatory as they perpetuated the historical
disadvantage of those with mental illness. As such, the impugned
provisions were found to violate section 15(1) of the Charter
of Rights and Freedoms.
It remains to be seen how this decision
will affect future claims as a decision of the WSIAT tribunal is
only binding on the parties to the appeal. Of note, WSIAT found
that the portion of section 13 (5) which excludes entitlement for
mental stress caused by the employer's decisions or actions was
not before them in the appeal. This restriction may also be
challenged in future claims. The Ontario Occupational Health
and Safety Act requires that employers protect workers from
workplace violence and harassment. Employers need to ensure that
they sufficient workplace policies in place and provide adequate
training to prevent workplace violence and harassment and limit
stress-related lost time claims.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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