Lawsuit takes on WSIB for rejecting 'chronic mental stress' claims

A new court case will try to overturn Ontario's denial of compensation for workers whose jobs caused them ongoing mental stress.

CBC News has obtained court documents in which lawyers representing workers argue the provincial government and the Workplace Safety and Insurance Board (WSIB) are violating the Charter of Rights by excluding chronic mental stress from the kinds of injuries eligiblefor compensation.

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Currently, provincial law does not provide insurance benefits for job-related mental stress unless caused by "a sudden and unexpected traumatic event."

The lawyers are asking Ontario's Superior Court of Justiceto declare theexclusion unconstitutional and to order the WSIBand its appeals tribunal to reconsider past claims on that basis.

An officialwith theMinistry of Laboursaid Tuesday the province is reviewing the legal documents anddeclinedfurther comment.

One of the applicants in the case, MargeryWardle, suffered ongoing sexual harassment for years in her job with the city of Ottawa, according to the legaldocuments. Her claim for workplace compensation benefits was denied by the WSIB, and her appealultimately rejected in 2015.

Wardleworked as a heavy equipment operator and was constantly bombarded by pornography in the workplace, prominently displayed on the walls of the lunchroom and on some occasions, wrapped around her timecard.

"It wasn't just a few girly pictures here and there,"Wardlesaid Tuesday in an interview with CBC News at her home in Nepean. "Itwas extremely degrading and pervasive,and management refused to use their authority and what I believed to be their obligation to end it."

'I was spat at, grabbed from behind'

After she filed a formal complaint, the harassment only increased, said Wardle.

"I was spat at, I was grabbed from behind in what I would describe as a bear hug, with my arms pinned at my side," she said. "It was extremely frightening in some situations, very effectively intimidating."

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She first filed her WSIB claim for mental stress in 2005.

"Although the worker may have been subject to sexual and other types of harassment in the workplace, I am unable to conclude that her psychological condition resulted from a sudden and unexpected traumatic event," reads the 2015 decision by a WSIB appeals resolution officer.

Other provinces, including Saskatchewan and British Columbia, allow compensation for a wider range of job-related mental health issues.

"The system [in Ontario]seems to be geared more toward physical injuries that they can see as opposed to ones that they can't see," said Willy Noiles, president of the Ontario Network of Injured Workers Groups, also an applicant in the case.

Noiles said it "doesn't make sense" that long-term stress is not considered a valid workplace injury but acute stress is.

"It's not fair because they should all be dealt with the same way. If it happened in the workplace, that should be the key factor, not whether it happenedall at once or whether it happened over time."

There are more than 170 cases before the appeals tribunal in which workers are seeking compensation for ongoing mental stress, and there are likely many more who didn't bother to file claims because of the exclusion, said lawyer Christine Davies of GoldblattPartners,a labour law firm in Toronto.

The Ontario legislature recently passed an amendment to the Workplace Safety and Insurance Act that repeals the exception to allow forcompensation for chronicmental stress.But it will only take effect from Jan. 1, 2018.

"That doesn't address the situation of all those workerswho are affected [already] who still don't have anywhere to go for compensation for their workplace injuries that are caused by chronic mental stress," said Davies in an interview with CBC News on Tuesday.

A WSIBspokesperson declined to comment directly on the court case, but pointed to the upcoming change in the law. "We look forward to supporting Ontarians dealing with work-related chronic mental stress and helping them return to a healthy and safe workplace," said public affairs manager Christine Arnott in an email to CBC News.

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Much of the attention to mental stress as a workplace injury has focused on first responders suffering from post-traumatic stressdisorder. Firefighters, paramedics and police officerspreviously had to prove theirPTSDwas triggered by their work, but changes toOntariolaw in 2016 meanthat the disorder is presumed to be work-related among first responders.