The basic rule of workers’ compensation legislation is that a worker is deprived of the right to sue the employer for a workplace “accident”. In this sense it is a form of “no-fault” insurance.

It is important legislation. Roughly 70% of Ontario’s work force is covered by the statute.

Amendments to the Act

At one time it was very difficult to qualify for benefits due to mental stress. The worker needed to show a unique and sudden singular event which caused emotional harm. The example often given was a person witnessing a co-worker’s death or similar tragedy.[1]

The Act was revised in January of 2018 to allow compensation for mental distress as follows:

13(4)     Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

13(5)     A worker is not entitled to benefits for mental stress caused by decisions or actions 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, to discipline the worker or to terminate the employment.

The Repercussions on Civil Actions

The impact of this amendment will be severe on civil actions in employment cases in which a remedy is sought for emotional harm due to workplace wrongdoing. This will require such a remedy by sought for workers’ compensation benefits and not civil relief. This will likely include claims for “moral” or “aggravated” damages which are in reality claims for emotional distress.

A recent decision of the Divisional Court came to the same conclusion.[2] The origin of the case was a grievance remedy sought under a collective agreement, but the principles are the same. One possible footnote is the review process in this context requires only that the arbitrator’s decision be “reasonable”, as opposed to correct.

In this case the worker had sought financial compensation for emotional harm caused by workplace bullying and harassment. The arbitrator and the Divisional Court concluded that such a claim must be brought under the Workplace Health & Insurance Act and not by the arbitral remedy.

Civil Claim

The issue was also considered recently[3] by the WSIAT.[4]

The employee had sued her employer, a Subway restaurant franchisee, its owner and her immediate superior alleging various acts of sexual harassment and assault by her supervisor. The claims against the company and the owner were in negligence. The immediate boss pleaded guilty to a criminal offence related to his wrongdoing.

The motion brought by the company and its owner to dismiss the civil action succeeded as it was clear that the employee was covered by the Act and hence denied the right to sue. A sexual assault of this nature is clearly covered by the wide definition of the term “accident” in the statute which includes wilful and intentional conduct.

Employers’ View

Companies should not treat these decisions with great glee. Workers compensation claims are no fault and premiums will be adjusted significantly, given a claims history. The most prudent course of action, needless to say, is to promote a safe and responsible workplace.

Employees’ on the Alert

The law on this subject is far from intuitive. It is a mine field. The time period for filing a workers’ compensation claim is very short. Many persons have no idea of their right to bring such a case. Lawyers bringing civil actions as in this instance will expose their client to costs, a lost case and perhaps have missed the time period for filing a workers’ compensation case.

Get Advice, Then Act

Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647 792 0310 to schedule a consultation.

[1] The precise wording was “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”

[2] OPSEU v Ontario

[3] Decision No. 3096/17, 2018 ONWSIAT 1563

[4] Workplace Safety & Insurance Appeals Tribunal