May 24, 2017

Ontario to Extend WSIB Benefits for Work-Related Mental Stress

On May 17, 2017, the Legislature passed Bill 127 – the Stronger, Healthier Ontario Act (Budget Measures), 2017. Through Schedule 33, Bill 127 introduced many amendments to the Workplace Safety and Insurance Act (“WSIA” or the “Act”).
Perhaps most notably, the Bill amends Section 13 of the WSIA to explicitly include Chronic Mental Stress (“CMS”). These amendments come into force on January 1, 2018 and do not have retroactive application.
Currently, the Act limits entitlement under Section 13(5) to workers who experience an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment, otherwise known as Traumatic Mental Stress (“TMS”).
The decision to amend Section 13 may, in part, be a reaction to the recent Section 15 Charter challenges that have been brought against the current mental stress provisions. Further, the amendments may be in reaction to the subsequent discrepancy in decision making regarding the application of the same. While Bill 127 may eliminate this discrepancy, whether it brings the mental stress provisions in-line with the Charter remains to be seen.
Allowing entitlement for CMS is also congruent with the steps that the Ontario Government has taken to protect workers from workplace harassment. As of January 1, 2018, a worker may receive entitlement to Workplace Safety and Insurance benefits if a substantial work-related stressor(s), including workplace bullying or harassment, significantly contributed to the worker’s CMS. Given the focus that the Government has already placed on ensuring the workplace is harassment free, employers who have implemented programs relating to these requirements under the Occupational Health and Safety Act are likely well equipped to deal with Schedule 33’s new entitlement scheme.
Schedule 33 explicitly adds entitlement for chronic mental stress (“CMS”). As of January 1, 2018, Section 13 will read as follows:
Mental Stress
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.
Same, exception
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.
“Chronic” or “Traumatic” mental stress are not terms defined in the WSIA, but the WSIB has released a draft policy for stakeholder consultation which provides some additional guidance on the terms, such as:

• Work-related chronic mental stress is caused by a substantial work-related stressor or series of stressors that are not necessarily traumatic in nature.
• Work-related chronic mental stress could be the result of being subjected to harassment or bullying such as humiliating jokes, demeaning conduct, or persistent criticism by a co-worker over several years.
• Work-related traumatic mental stress involves events that are generally accepted as traumatic, such as a criminal acts or a horrific accident. In most cases a traumatic event will be sudden and unexpected.
• An employer’s actions that are part of the managerial function, such as terminations, demotions, transfers, discipline, changes in working hours or changes in productivity expectations do not entitle an employee to traumatic or chronic mental stress coverage.

These changes may have many implications for employers. For example, an expanded role of the WSIB in respect of mental injuries and illnesses that were previously excluded from coverage could affect the cost of insured benefits and the cost of WSIB insurance. The WSIB’s role in handling mental injury claims will undoubtedly expand with these amendments. This new treatment of mental injury claims, alongside the lack of a set definition for “traumatic” or “chronic” stress in the WSIA may lead to disputes over adjudication of entitlement and an increase in claim appeals.
Employers can attempt to mitigate the impact of these changes by taking proactive steps to re-evaluate the workplace and to take measures to address circumstances that may significantly contribute to the development of CMS. Although the Bill only applies to accidents that occur on or after January 1, 2018, by nature, chronic mental stress can occur as a result of a cumulative series of work-related stressors. This means that workplace stressor(s) that are occurring in the workplace today, may result in entitlement under this new legislative scheme.
As noted above, the policy addressing mental stress is still in draft form and the WSIB is currently seeking feedback regarding this draft policy. If you would like to participate in this consultation process, the WSIB has requested that you provide your written feedback to the WSIB’s Consultation Secretariat at: consultation_secretariat@wsib.on.ca by July 7, 2017
If you have and questions about this topic or any other topics relating to workplace law, please contact a CompClaim consultant or Mathews Dinsdale lawyer.
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