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contributing to a mental stress injury and a determination of the
impact of each stressor on the injury. This will not be a simple
task in situations where workers are dealing with both substantial
work-related stressors and stressors outside of work (e.g., divorce,
elder care, loss of a family member, financial issues or illness). In
those types of situations, it may be difficult to discern the level of
impact the substantial work-related stressor has had on the worker’s
mental stress injury in comparison to the others.
POTENTIAL RETROACTIVE EFFECT
To add further complexity to the matter, the government recently
proposed further changes to the WSIA which, if implemented,
will allow workers who suffered chronic mental stress injuries between
April 29, 2014 and January 1, 2018 to submit claims for
chronic mental stress injuries. Adjudicating claims for mental
stress injuries that occurred several years ago will further complicate
the determination of whether the substantial work-related
stressor is the predominant cause of the worker’s mental stress injury.
The records, recollections and other information about these
claims may be sparse in comparison to claims for chronic mental
stress injuries arising after January 1, 2018.
The WSIA is not the only legislation in Ontario that addresses
injuries in the workplace. Specifically, the Occupational Health
and Safety Act (OHSA) outlines requirements for employers
to take in order to promote health and safety in the workplace.
Employers who fail to adequately protect the health and safety of
their workers risk being charged by the Ministry of Labour. While
the OHSA traditionally applied to physical threats to health and
safety in the workplace, recent amendments have expanded its application
to address workplace harassment and violence, which
often threaten a worker’s mental health. Similarly, the WSIB’s
Policy acknowledges that workplace harassment will generally be
a significant work-related stressor. As the WSIB identifies other
significant work-related stressors, it will be interesting to see
whether the OHSA is further expanded to contemplate these
newly identified work-related threats to a worker’s mental health.
Finally, while these changes will almost certainly increase the
WSIB’s already enormous case load and may result in further
changes to the OHSA, they also have potential implications for
other areas of employment law, including the ability to bring
claims for long-term disability benefits, human rights applications
and civil claims. Once the WSIB begins adjudicating claims for
chronic mental stress injuries in accordance with the new provisions
of the WSIA, this should provide some clarity on how the
changes might affect these other areas of employment law. Until
then, navigating this unchartered territory is sure to keep human
resources professionals busy in the months to come. n
Malcolm MacKillop is a senior partner, Hendrik Nieuwland is
a partner and Amelia Cooke is an associate at Shields O’Donnell
MacKillop LLP. Seth Holland is an articling student at the firm.
16 ❚ CONFERENCE ISSUE 2018 ❚ HR PROFESSIONAL