By David Newberry
Until 1998, Ontario worker’s compensation system compensated workers with mental health injuries, whether they were chronic, acquired over time, or acute, from a traumatic event. For many years, the basic principles of workers compensation allowed workers who suffered from conditions such as major depressive disorder, anxiety, and post-traumatic stress disorder because of their work were entitled to benefits.
This remained true until the late 1990s, when then Minister of Labour Elizabeth Witmer and the Mike Harris Conservatives passed Bill 99. This bill made a number of negative changes to workers’ compensation, including removing coverage for chronic mental stress. Elizabeth Witmer is now Chair of the WSIB’s Board of Directors.
Specifically, Bill 99 limited coverage for mental health injuries to workers who had experienced traumatic mental stress. Under this new law, only mental stress injuries caused by “an acute reaction to a sudden and unexpected traumatic event…” were covered.
As a result, the WSIB does not accept any mental stress conditions that emerge over time. A worker who develops a psychological disorder after witnessing a traumatic event, such as a co-worker dying in a construction accident, would be entitled to benefits, while a worker who develops the same disorder after enduring years of harassment at work would not. This is different from how Ontario’s compensation law and policy treats physical injuries. Whether your physical injury is caused by a single event (like a broken limb), or emerges over time (like a repetitive strain injury), Ontario workers are entitled to compensation.
In 2014, the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the final level of appeal from the WSIB, found the restriction on chronic mental stress injuries to be unconstitutional. It found that it was discriminatory to exclude chronic mental injuries from compensation and thus violated our fundamental right to equality. Ontario’s Attorney General decided not to appeal the decision to a higher court.
Unfortunately, despite the finding that the mental stress restriction is illegal, workers continue to be excluded from coverage. Injured workers and their advocates have asked the WSIB, its Chair Elizabeth Witmer, and the Ministry of Labour to change the relevant discriminatory law and policy, and they have so far refused.
The Chair of the WSIB’s board Mrs. Witmer, who was one of the architects of Bill 99, has expressly told advocates that the WSIB is not able to compensate for chronic mental stress because they are bound by the restrictions of the Workplace Safety and Insurance Act. These are the very restrictions that she herself helped to create.
What Now?
Because of the inaction of the Ontario Government and the WSIB’s application of its unconstitutional policy, workers with chronic mental stress injuries continue to be denied WSIB coverage. The only option for these workers is to engage in a multi-year appeals process. This includes a complicated, costly, and stressful Charter of Rights challenge, in order to receive the compensation that they are legally entitled to. Many of those affected by chronic mental stress have psychological disabilities that prevent them from working, and will spend years without any compensation benefits while fighting this battle. They often lose their savings, their homes, and end up on social assistance.
At a time of increased awareness about bullying, harassment, and mental health, the Ontario Government and WSIB continue to discriminate against workers with psychological injuries.
As a result, a group of legal clinics and private lawyers have filed a complaint with Ontario’s Ombudsman. We welcome support of this complaint. Please write to Ombudsman Paul Dubé to support this complaint, describing how the WSIB’s application of their unconstitutional mental stress policy affects the people you work with. You can use this sample letter as a guide.
Thank you for speaking out about this important issues. To many workers disabled by PTSD are dying through suicide as a direct result of this policy that is both illegal and violates the human rights of the most vulnerable members of Canadian society.
This is exactly what I am talking about! People who challenged the constitutionality of WSIB law, which is denial of entitlement for chronic mental stress, and won at the WSIAT, but the law, policies and practices still stand. Why? Because the WSIAT (the Tribunal) does not have the constitutional authority to strike down a law. As the constitution says, to have no force or effect. A judge in the Superior Court of Ontario, on the other hand, has been provided with independent constitutional authority, to strike down a law or section of it. A good example is the assisted suicide law, which is in a section of the criminal code. This was struck down by the courts, specifically the Supreme Court of Canada and is no longer in full force or effect.
In dealing with injured workers, or more accurately, victims of workplace accidents, A most traumatic case would be, a worker is sexually harassed and/or assaulted in the workplace. Then files a claim with the WSIB and is told they have to return the scene of the crime, only to be supervised by the perpetrator. I don’t know about you, but this is cruel and unusual punishment, punishment for a victim no less! In a lesser case, but still very serious and relevant case, a worker suffers a workplace injury and is then harassed and humiliated about their injury. They are legally compelled to return to work to be harassed again. There are also many other examples of contradictions of the constitution in comparison to the former WCB act and the present WSIB Act.
It’s time for us all to make a change, that change is to speak out, by taking easy simple affordable action against the draconian law that enslaves us!
I think sending the letter to the Ontario Ombudsman will help, as I will be doing. I also think if a thousand victims of workplace accidents, individually filed a formal constitutional challenge of the actual WSIB law in the courts, that would be more beneficial. It would benefit all injured workers and it would do so permanently. Remember, the Courts are a separate part of the government. It is rarely used by the individual to enact positive change. I have provided a step by step guide on my website on how to do it, and including how to file it, with having not to pay the court fees for low income persons.
http://www.fightwcb.org/launch-challenge-against-wsib.html
This is probably the easiest way we can all collectively make a difference for all victims of workplace accidents.
Paul Taylor that’s exactly what happened to me. It took 11 years to approve it was a traumatic accident in 2013. I suffer from PTSD anxiety depression. They are still not respecting my illness despite Dr’s., specialists…..even CAMH agrees. Now they are playing a new game, but still discriminating me by not treating me for 15 years. My case is definitely going to be ammo we need. I’m wondering should I get the attorney general involved?
won my WSIAT Tribunal in 2013