WSIB benefits to be available in Ontario for “chronic or traumatic mental stress” starting in 2018

Ontario has amended the Workplace Safety and Insurance Act to make WSIB benefits available for “chronic or traumatic mental stress” arising from the workplace, starting January 1, 2018. There will be no retroactive application.

The amendments provide, however, that:

“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.”

As with any type of workplace injury, in order to obtain WSIB benefits for mental stress, the worker must show that the mental stress “arises out of and in the course of” the worker’s employment.  To obtain WSIB benefits for mental stress, the worker must also prove that the mental stress was “chronic” or “traumatic”.

The WSIB has released a draft policy on chronic mental stress and invites comments before July 7, 2017.

Of course, workers employed by employers that are not registered with the WSIB (and not required to be registered) will not be entitled to WSIB benefits for workplace mental stress.

One expects that this change will result in a significant number of claims to the WSIB, since “job stress” is a commonly-raised issue.  Some of those claims might otherwise have manifested themselves as workplace harassment complaints (under the employer’s workplace harassment policy), a harassment application to the Human Rights Tribunal of Ontario, a union grievance, or a claim to the employer’s group benefits insurer under a group long-term disability insurance plan.

A Workplace Safety and Insurance Appeals Tribunal decision in 2014 had determined that the current workplace mental stress provisions of the Workplace Safety and Insurance Act violated the Canadian Charter of Rights and Freedoms in that they discriminated against workers with mental disabilities.  The amendments appear to be, at least in part, a response to that decision.

The section of the Bill that relates to amendments to the Workplace Safety and Insurance Act may be read here.



Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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