Canadian Occupational Safety

12 Canadian Occupational Safety | www.cos-mag.com Is workplace bullying compensable? Ontario expanding workers' compensation law to include emotional stress T he law regarding harassment, bullying and discrimination is generally understood to be the purview of human rights legislation in Canada. Bullying may also be an occupational health and safety issue and the subject of grievances and wrongful dismissal claims in the courts. However, there appears to be a growing move on the part of employees, unions and workers' compensation boards to engage the issue of bullying in the context of workers' compensation legislation. This raises the issue of whether the adverse health effects of workplace bullying is compensable under workers' compensation legislation and systems across Canada. As a management-side labour, employment and regulatory lawyer for more than 34 years, I have seen trends come and go in the area of workplace disagree- ments, disputes and damages. Certainly the right of the employer to "demand" that employees show up and do their job is less obvious than it once was. In the early '80s I dealt with many wrongful dismissal cases where an employer alleged termination for cause for an employee being insubordinate and not doing what she was told to do. However, this simple assessment of the employment relation- ship — "master and servant" — has evolved and compelled employers to take a more holistic and sensitive approach to workplace management. Otherwise, a heavy-handed employer may be accused of bullying its employees. For example, I have just fi nished arguing an Ontario workers' compensation case where the employee alleged that she was "harassed" by her supervisor and this resulted in "traumatic mental distress" and a compensable claim under the workers' compensation system in Ontario. Twenty years ago, this case would have been an outlier, now it is a typical workers' compensation claim that employers are facing. Now, the manner in which employers treat their employ- ees may not only be the subject of human rights complaints, wrongful dismissal claims and union grievances, but also of workers' compensation claims. Case in point is a lawsuit that was launched in June against the Workplace Safety and Insurance Board (WSIB) and the government of Ontario on behalf of hundreds of Ontario workers who were denied compensation for mental stress claims. The lawsuit aims to overturn these decisions, stating they are unconstitutional. But change is coming. As of Jan. 1, the scope of workers' compensation leg- islation will be expanded in Ontario. Employees will be able to receive benefi ts arising out of the emotional trauma experienced from a workplace event, such as bullying and harassment, which the WSIB is referring to as "chronic mental stress." Terminations, demotions, transfers, discipline, changes in working hours or changes in productivity expectations would not be compensable. In another example, the Workers Compensation Board (WCB) of Prince Edward Island recently awarded benefi ts to the widow of a worker who died of a heart attack in November 2013. The worker suffered a workplace back injury a few months earlier and then returned to work. According to the widow's sub- missions to the WCB, the worker was then bullied at work by his supervisor. The worker did not feel he was receiving the proper support from his employer and this contributed to his heart attack. The litigation direction that the workers' compensation claim took was rather complex. The worker's family had approached the WCB about the availability of workers' compensation benefi ts. They were advised that the death was not directly caused by a workplace injury and, therefore, benefi ts were not available to the dependants. Then the worker's estate, widow and children, subsequently commenced a court action against the employer and supervisor claiming per- sonal injury damages. This lawsuit alleged that the worker had died from heart failure as a result of workplace bullying. Effectively, the lack of support for his return to work by his supervisor had caused or materially contributed to the heart attack. The Supreme Court of P.E.I. initially dismissed the action on the basis that it did not have jurisdiction, and that there were other remedies available, includ- ing grievance arbitration through the union. Also, the court said that if the work conditions led to stress, anxiety and physical symptoms, which were caus- ally connected to the fatal heart attack, there may also be a valid WCB claim. Then, the P.E.I. Court of Appeal reversed the decision, fi nding that the P.E.I. Fatal Accidents Act did give the court jurisdiction over the claim brought by the dependents. The Court of Appeal was unable to decide that issue on the limited evidence presented. The court also commented that the WCB can adjudicate and determine whether a right of action is removed by the Workers Compensa- tion Act. The estate of the deceased then went back to the WCB seeking clarifi cation of their right to apply for and receive benefi ts. The WCB then confi rmed that a workplace accident could indeed include bullying and harassment if it was at work and did result in an injury. After receiving submissions from the parties, the WCB determined that the worker's death was linked to workplace bullying and harassment, thus entitling the widow to benefi ts. Subject to any appeal of this decision, the case demonstrates how an employer treats its workers may indeed be important when an employee claims that she was harassed or bullied by her supervisor at work. It's clear what constitutes an "accident" is changing in jurisdictions across the country. Employers would be well-advised to review their current conduct poli- cies to ensure that proper direction is given to both supervisors and employees on how to treat each other, as well as the proper manner of investigation com- plaints to minimize the risk of bullying at work. Going forward, it appears that workplace harassment, discrimination and bullying may be considered by work- ers' compensation boards in jurisdictions across Canada as compensable claims. Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information. LEGAL LANDSCAPE NORM KEITH

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