Lawsuit takes on WSIB for rejecting 'chronic mental stress' claims

A new court case will try to overturn Ontario's denial of compensation for workers whose jobs caused them ongoing mental stress.

Ontario has long denied compensation for workplace mental stress despite rulings it was unconstitutional

Ontario's Workplace Safety and Insurance Act says workers are entitled to benefits for mental stress only if it is 'an acute reaction to a sudden and unexpected traumatic event' while on the job. (Jonathan Hayward/The Canadian Press)

A new court case will try to overturn Ontario's denial of compensation for workers whose jobs caused them ongoing mental stress. 

CBC News has obtained court documents in which lawyers representing workers argue the provincial government and the Workplace Safety and Insurance Board (WSIB) are violating the Charter of Rights by excluding chronic mental stress from the kinds of injuries eligible for compensation. 

Currently, provincial law does not provide insurance benefits for job-related mental stress unless caused by "a sudden and unexpected traumatic event."   

The lawyers are asking Ontario's Superior Court of Justice to declare the exclusion unconstitutional and to order the WSIB and its appeals tribunal to reconsider past claims on that basis. 

An official with the Ministry of Labour said Tuesday the province is reviewing the legal documents and declined further comment. 

One of the applicants in the case, Margery Wardle, suffered ongoing sexual harassment for years in her job with the city of Ottawa, according to the legal documents. Her claim for workplace compensation benefits was denied by the WSIB, and her appeal ultimately rejected in 2015. 

A Workplace Safety and Insurance Board hearing agreed that Margery Wardle suffered from a 'stressful workplace environment relating to harassment' but denied her claim for benefits because the event was not 'sudden and traumatic.' (CBC)

Wardle worked as a heavy equipment operator and was constantly bombarded by pornography in the workplace, prominently displayed on the walls of the lunchroom and on some occasions, wrapped around her timecard. 

"It wasn't just a few girly pictures here and there," Wardle said Tuesday in an interview with CBC News at her home in Nepean. "It was extremely degrading and pervasive, and management refused to use their authority — and what I believed to be their obligation — to end it." 

'I was spat at, grabbed from behind'

After she filed a formal complaint, the harassment only increased, said Wardle. 

"I was spat at, I was grabbed from behind in what I would describe as a bear hug, with my arms pinned at my side," she said. "It was extremely frightening in some situations, very effectively intimidating." 

She first filed her WSIB claim for mental stress in 2005. 

"Although the worker may have been subject to sexual and other types of harassment in the workplace, I am unable to conclude that her psychological condition resulted from a sudden and unexpected traumatic event," reads the 2015 decision by a WSIB appeals resolution officer. 

The Ontario legislature recently amended the law so that workers who suffer chronic mental stress on the job will be eligible for compensation benefits, but only for cases from Jan. 1, 2018 onward.

Other provinces, including Saskatchewan and British Columbia, allow compensation for a wider range of job-related mental health issues.

"The system [in Ontario] seems to be geared more toward physical injuries that they can see as opposed to ones that they can't see," said Willy Noiles, president of the Ontario Network of Injured Workers Groups, also an applicant in the case. 

Noiles said it "doesn't make sense" that long-term stress is not considered a valid workplace injury but acute stress is. 

"It's not fair because they should all be dealt with the same way. If it happened in the workplace, that should be the key factor, not whether it happened all at once or whether it happened over time." 

There are more than 170 cases before the appeals tribunal in which workers are seeking compensation for ongoing mental stress, and there are likely many more who didn't bother to file claims because of the exclusion, said lawyer Christine Davies of Goldblatt Partners, a labour law firm in Toronto. 

Christine Davies, a lawyer with Goldblatt Partners in Toronto, is involved in the application to have a court strike down the law that excludes chronic mental stress from workplace insurance benefits. (CBC)

The Ontario legislature recently passed an amendment to the Workplace Safety and Insurance Act that repeals the exception to allow for compensation for chronic mental stress. But it will only take effect from Jan. 1, 2018. 

"That doesn't address the situation of all those workers who are affected [already] who still don't have anywhere to go for compensation for their workplace injuries that are caused by chronic mental stress," said Davies in an interview with CBC News on Tuesday. 

A WSIB spokesperson declined to comment directly on the court case, but pointed to the upcoming change in the law. "We look forward to supporting Ontarians dealing with work-related chronic mental stress and helping them return to a healthy and safe workplace," said public affairs manager Christine Arnott in an email to CBC News.

Much of the attention to mental stress as a workplace injury has focused on first responders suffering from post-traumatic stress disorder. Firefighters, paramedics and police officers previously had to prove their PTSD was triggered by their work, but changes to Ontario law in 2016 mean that the disorder is presumed to be work-related among first responders.