Law Times

Page 10 OctOber 16, 2017 • Law times www.lawtimesnews.com Bill receives Royal assent Worker's compensation to cover chronic mental stress BY MICHAEL MCKIERNAN For Law Times E mployers should be thinking about how they can prevent bullying and harassment in the workplace after the provincial government expanded workers compensation law to include claims for chronic mental stress, says a Toronto lawyer. In May, Bill 127, the Stronger, Healthier Ontario Act received Royal assent, allowing claims for Workplace Safety and Insurance Board benefits from individuals who suffer from chronic mental stress in the course of their em- ployment. The bill takes effect in Janu- ary, but in the meantime, the WSIB has released a policy that explains when it will approve claims. According to the policy, any worker who can show they have a "diagnosed mental stress injury" caused by a "substantial work-related stressor," which in- cludes bullying and harassment, is entitled to benefits. "I think that employers need to take preventative measures to make sure these claims don't arise in the first place," says William Goldbloom, a lawyer with Toron- to-based employment law bou- tique Rubin Thomlinson LLP. Before Bill 127 amended the Workplace Safety and Insurance Act, compensation for workplace mental injuries was only avail- able in cases stemming from a single traumatic event, such as witnessing a horrific accident. The previous version of the act specifically excluded all other mental injuries, includ- ing chronic stress that builds up over time, prompting a series of Charter challenges alleging the law was discriminatory. Goldbloom, who conducts workplace investigations and training as part of his practice, says the provincial government's belated action on the issue could result in a wave of fresh claims from workers who would previ- ously have been put off by the legal barriers. The changes have f lown un- der the radar of many employ- ers, he says, but more should be paying attention. "Most of the discussion so far has been among lawyers, and I'm not sure it has totally filtered down to employers," he says. "They are aware of the WSIB and the fact that their rates may go up as a result of claims, but it doesn't have the same direct im- pact as a big civil action for con- structive dismissal." Still, a WSIB claim can be an intrusive process for employers, according to Goldbloom, who says they can head off trouble before it starts by conducting a thorough assessment of the risk of harassment or bullying in their workplace. "Even if you feel your work- place is free from harassment and bullying, an assessment may still need to be done, because these are problems that are often invis- ible to management," he says. Although the Occupational Health and Safety Act requires employers to investigate inter- nal complaints of harassment, Goldbloom says a reactive ap- proach is risky, because workers can suffer stress and make WSIB claims without ever alerting management via a complaint. "If employers are proactive, they can start managing work- place dynamics themselves, without the involvement of a third party, which might make it easier or more comfortable," Goldbloom says. Antony Singleton, a Toronto lawyer who acts for injured claim- ants before the WSIB, says the legal bar on mental stress claims was a longstanding source of dis- pleasure for workers' groups. On three occasions since 2014, claimants have convinced the Workplace Safety and Insurance Appeals Tribunal that the law was unconstitutional. However, after each decision, the provin- cial attorney general declined to appeal the ruling. And since the WSIAT has no power to strike down legislation, claimants with mental stress injuries are forced to start again from the beginning with their own expensive and lengthy Charter challenges. Singleton says Bill 127 ap- peared to be a "step in the right direction" but the WSIB's new policy for putting the law into action has only angered workers' advocates further. For example, it makes no pro- vision for any individuals with claims that pre-date the Jan. 1 in- force date for the amendments. "There are lots of people with injuries that arose before now, many of whom have already been denied benefits or are some- where else in the appeals system," Singleton says. "The law leaves FOCUS William Goldbloom says changes to pro- vincial laws around workplace bullying and harassment have flown under the radar of many employers. GET ALL YOUR CPD AT THE TORONTO LAWYERS ASSOCIATION Advocacy Masterclass: Opening and Closing Statements at Civil Trial Wednesday, November 1, 2017 4:00 p.m. - 7:00 p.m. Speakers: John McLeish, McLeish Orlando Paul Tushinski, Dutton Brock LLP tlaonline.ca | info@tlaonline.ca Register now or contact us at Untitled-5 1 2017-10-10 8:42 AM See Belated, page 12 There are lots of people with injuries that arose before now, many of whom have already been denied benefits or are somewhere else in the appeals system. Antony Singleton

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