A coalition of injured workers, community legal clinics, private bar lawyers, and doctors with decades of direct experience in Ontario’s workers’ compensation system has sent a clear and urgent message to Premier Wynne on the Workplace Safety and Insurance Board’s (WSIB) new Chronic Mental Stress policy (Policy 15-03-14):
It reverses all the good the government intended by removing barriers in the legislation to compensation for those suffering workplace mental injuries, leaving these injured workers in a worse position than before. It puts a heavier burden of proof on workers injured by chronic mental stress than any other workplace injury or disease and that is not fair – it is discrimination based on disability and therefore violates the Charter of Rights. [read full Coalition letter]
How did compensation for mental stress get more unjust?
Earlier this year, Bill 127 (2017) amendments to the Workplace Safety and Insurance Act included changes that gave workers back the right to claim benefits for work-related chronic mental stress injuries – a right removed in 1998 through Bill 99. Following a number of Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions (and years of advocacy by the injured worker community), the government introduced the 2017 changes extending entitlement to compensation for mental injuries. The Appeals Tribunal had ruled the restriction on entitlement was discriminatory. In treating mental illness differently from physical injuries – stigmatizing them as not a “real” disability – this section of the Act was unconstitutional, violating the Canadian Charter of Rights.
While welcoming Bill 127’s removal of this barrier in the workers compensation act, the change does not take effect until 2018, leaving 20 years of denied chronic stress claims. In June this year the Ontario Network of Injured Workers Groups filed a lawsuit in Ontario’s Superior Court seeking a declaration that the exclusion of chronic stress is contrary to the Charter and has been invalid since the law was changed by Bill 99. [see Notice of application]
The injured worker community also raised the alarm about another amendment Bill 127 contained. This change gave the WSIB broad new powers that would let the Board change law by policy that could overturn fundamental principles such as the rules of evidence in Ontario’s workers’ compensation system.
Government gave WSIB a license to discriminate
As feared, the WSIB introduced a new policy which undermines the legislative change passed by the government, putting new limits on entitlement for chronic mental stress. Ignoring concerns raised by injured workers and their advocates during the policy consultation, the new policy requires a higher burden of proof for workers with work-related chronic mental stress disability to have their claims approved than for workers with all other injuries. By requiring injured workers to have proof that workplace events were the “predominant cause” of their mental illness, not just a “significant contributing factor,” the WSIB requires health care professionals to make impossible judgments. Many mental stress injuries will go uncompensated; all but workers with the most extreme cases of mental stress injury will be denied the healthcare, recovery and return to work support they need.
The Coalition is confident that the Board’s new policy, in continuing to deny injured workers their Charter rights on the basis of disability, will be found illegal and unconstitutional. The Supreme Court of Canada and the Appeals Tribunal have “rejected the wrongheaded notion that mental injuries are less real, more subjective and more suspect than physical ones.”
The Coalition calls on the Ontario government to take action to correct this injustice before the new policy and changes to the Act come into effect (January 1, 2018).
- Mojtehedzadeh, Sara. 2017 Oct. 15. “New WSIB policy on mental health will set workers back decades, critics say.” Toronto Star
- Coalition. 2017 Oct. 12. Letter to the Premier re: WSIB’s Discrimination Against Workers with Mental Injuries
- CUPE Ontario. 2017 Oct. 11. Letter to the Minister of Labour on Chronic Work-Related Mental Stress. – see also Oct. 6 News Release: New WSIB Policy Leaves Workers Suffering From Chronic Mental Stress Out in the Cold
- Ontario Federation of Labour. 2017 Oct. 6. News Release: It’s Time For the WSIB to Treat Workers Suffering From Mental Stress Fairly, Says OFL.
- Injured Workers’ Consultants Community Legal Clinic. 2017 Jul. 7. Submissions to the WSIB Draft Mental Stress Policy Consultation.
- Schedule 33 Coalition. 2017 May 15. Submissions to the Standing Committee on Finance and Economic Affairs Re Bill 127.