Legal challenge targets mental-stress workers’ compensation claims

Hundreds of Ontarians who say they have suffered chronic mental stress due to their job may be awarded workers’ compensation if a new charter challenge is successful.

It targets Ontario’s workplace safety and insurance law, which allows for compensation to be given in mental illness claims that stem from a sudden or traumatic event, but excludes chronic mental stress that builds up over time, such as in cases of ongoing harassment.

One of the lawyers for the applicants, Christine Davies, said the suit was filed last week on behalf of two groups that represent injured workers and an Ottawa woman who says she was sexually harassed when she worked for the city.

They are asking the court to declare the exemption of chronic mental stress unconstitutional and invalid, Davies said, adding the Workplace Safety and Insurance Appeals Tribunal has already found it is unconstitutional in three individual claims, but does not have the power to change the law itself.

The situation is set to change Jan. 1, when a bill the Ontario government passed this spring comes into effect, amending the section of the law targeted by the suit.

The change will allow workers to get compensation for chronic mental stress stemming from work as long as that stress doesn’t come from normal changes in the workplace, such as being laid off or being disciplined.

“That legislation leaves a big gap of people whose claims arose before January 1, 2018,” Davies said.

The lawsuit is meant to affect approximately 170 chronic mental-stress cases currently working their way through the workers’ compensation system and any new cases that might arise this year, she said. It argues compensation should not be denied on the basis of the current law before the new law comes into effect.

One of the applicants in the lawsuit, Margery Wardle, has one of the existing workers’ compensation claims. It is in the appeals stage, more than a decade after she first filed for compensation.

In the notice of application filed with the court, Wardle said she suffered chronic mental stress as a result of sexualized photos posted at work, as well as being shunned by co-workers and an incident in which she was swarmed by people who shouted obscenities at her.

Davies said Wardle is required to argue — as others have before — that the exemption for chronic mental stress is unconstitutional.

“What we’re trying to do is get the court to simply declare those provisions to be invalid, so that nobody else has to do that, nobody else has to appeal for years and years to get a result they should have been entitled to at the start,” said Davies.

None of the claims have been proven in court. The respondents — the government of Ontario as well as the Workplace Safety and Insurance Board and appeals tribunal — were served this week.