May 28, 2019

With chronic or gradual onset stress increasingly being recognized as a compensable workplace injury by workers’ compensation boards across the country, employees with such conditions are turning to that system for compensation and other forms of redress. However, a recent audit by Ontario’s Workplace Safety and Insurance Board revealed that it had denied 94% of claims for chronic mental stress benefits. Does this mean that workers suffering from mental stress are being left without a remedy? What, if any, recourse is left through arbitration, common law, or in other forums, and what are the implications for employers, employees, and unions? In this session, experienced lawyers will examine the coverage of mental stress as a compensable workplace injury and will address the difficult challenges and issues facing all workplace parties. These include the following:

  • Establishing a claim: Which Canadian jurisdictions offer workers’ compensation benefits for mental stress? How is chronic mental stress defined? What are the elements required to establish a claim for chronic mental stress? Is it more difficult to establish entitlement for chronic mental stress than for other compensable workplace injuries? Are there any common challenges to establishing entitlement?
  • Linking stress to work: What type of evidence is required to establish that stress arises “out of and in the course of employment”? How does one establish that the workplace was the “predominant cause” of his or her illness? What is the distinction between normal work-related stressors (which are not eligible for benefits) and compensable mental stress? Can an employee receive workers’ compensation benefits for stress linked to management functions such as discipline, demotions, terminations, or transfers? What about stress arising from bullying and harassment?
  • Impact on civil actions: How does the availability of workers’ compensation benefits for chronic mental stress affect employees’ ability to sue for damages at common law? Are they now foreclosed from recovering damages for constructive dismissal or intentional infliction of mental suffering? What about punitive and aggravated damages or damages for mental distress? Can workers seek statutory damages for injury to dignity, feelings, and self-respect under human rights legislation?
  • Impact on grievance arbitration: Can damages for human rights violations be sought through grievance arbitration, or are they barred by workers’ compensation legislation? Are workers still able to pursue other forms of relief, such as supplemental benefits, declarations, or directory remedies, even though their claims for damages are barred?
  • Strategic considerations: Should an employer faced with a civil action or grievance raise a preliminary objection and argue that the employee should seek workers’ compensation benefits? Does the bar apply only if the employee is successful in obtaining workers’ compensation benefits, or can it apply even if the claim is denied? Can an employee preserve his or her ability to recover damages by deciding not to file a workers’ compensation claim, or does the bar apply automatically?