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Legislative amendments are a win for injured workers

February 09, 2018

Charter challenge results in legislative change for workers with mental health injuries

On June 29, 2017, the Ontario Network of Injured Worker Groups, Injured Worker Consultants, and Margery Wardle filed an application challenging the Workplace Safety and Insurance Act, 1997 under the Canadian Charter of Rights and Freedoms. They asked the court to strike down provisions that excluded individuals who suffer from chronic mental stress from applying for benefits.

The Workplace Safety and  Insurance Appeals Tribunal (WSIAT) had repeatedly held that this exclusion violated the Charter, but the Ontario government never amended the legislation, and the Workplace Safety and Insurance Board (WSIB) continued to rely on the impugned provisions to deny workplace stress claims. Because the WSIAT does not have the power to strike down a legislative provision, injured workers were left to continue to challenge the provisions on a case-by-case basis, indefinitely.

After much pressure, the government amended the Act to allow workers to make claims for mental stress injuries for accident dates on or after January 1, 2018.

While welcome, this amendment meant that a considerable number of injured workers, whose claims for benefits arose from accidents that predated 2018, continued to be denied benefits. It was particularly unfair to those individuals whose claims were pursued after the WSIAT first declared the legislation to be unconstitutional in April 2014, and whose appeals continued to linger in the system. The amendment left those individuals to continue to appeal their individual cases one by one to the WSIAT, with considerable delay, effort and expense, even though it acknowledged that the legislation barring their claims was unconstitutional.

That’s when the Ontario Network of Injured Worker Groups, Injured Worker Consultants, and Margery Wardle decided that enough was enough.  Represented by Christine Davies, they commenced a Charter challenge that sought to ensure a fair claims process for all workers with mental health injuries, not just those whose injuries occurred after January 1, 2018.

Now faced with a Charter challenge, the government finally decided to amend the Act again, this time to allow individuals whose injuries predate 2018 to claim benefits for mental stress.

Bill 177, The Stronger, Fairer Ontario Act (Budget Measures), 2017, added transitional provisions to the Act to give all individuals with mental stress injuries access to a fair process for their claims to be adjudicated. The transitional provisions:

  • allow new claims to be made for mental stress injuries that occurred on or after April 29, 2014, where the worker had not previously made a claim (the deadline to submit a new claim is July 1, 2018, although the transitional legislation does not eliminate the WSIB’s general discretion to consider late claims);
  • allow claims that were filed at any time prior to January 1, 2018, and were still pending before the WSIB or WSIAT, to be determined on the basis of the new rules applicable to mental stress injuries (this addresses the problem of claims that were already in the system and would otherwise have required a lengthy appeal process to the WSIAT); and
  • allow for claims that were decided by the WSIB and could be appealed to WSIAT, to be appealed and referred back to the WSIB, to be determined on the basis of the new rules applicable to mental stress injuries (this also addresses the problem of claims that were already in the system and would otherwise have required a lengthy appeal process to the WSIAT).

Injured workers and workers’ advocacy groups are rightly celebrating this victory. You can read the ONIWG’s statement here.

Lawyers

Christine Davies

Practice Areas

Employment Law