About Bill 127?
ENTITLEMENT TO CHRONIC MENTAL STRESS
BENEFIT TO EXPAND EFFECTIVE JAN. 1, 2018
By Laura Williams
The Ontario government’s budget implementation Bill 127,
the Stronger, Healthier Ontario Act (Budget Measures),
2017, amends numerous pieces of legislation, including
the Workplace Safety and Insurance Act, 1997 (WSIA).
The most significant Bill 127 amendments to the WSIA ex-pand
Workplace Safety and Insurance Board (WSIB) benefit
entitlement for mental health injuries resulting from chronic
work-related mental stress. This expansion, which will have a
dramatic impact on employers that participate in the WSIB in-surance
scheme, will come into effect on Jan. 1, 2018.
In passing these WSIA amendments, the government may have
fundamentally impacted workers’ rights to sue for harassment
and/or bullying experienced in the workplace. As such, the legisla-tion
could help mitigate employer liability to civil claims related to
harassment, such as claims for constructive dismissal related to al-leged
harassment at work.
Before delving deeper into Bill 127’s workplace implications, it
is instructive to explore some of the legal context behind the legis-lation
and the changes it introduced.
As HR professionals understand, Ontario’s workers’ compen-sation
legislation provides a no-fault insurance scheme whereby
workers may claim benefits for injuries or conditions caused by a
workplace accident. In exchange for these benefits, the WSIA ex-tinguishes
certain rights of action, limiting the ability of workers
who are employed by employers with WSIB coverage to sue em-ployers
for compensable injuries.
This means workers employed by an employer with WSIB cov-erage
(or those workers’ survivors) are not permitted to sue the
employer or any director, executive officer or other worker of the
employer with respect to an injury or disease that entitles the
worker to WSIB benefits.
The impetus for the expansion of WSIB benefits to chron-ic
mental stress injuries was a 2014 decision by the Workplace
Safety and Insurance Appeals Tribunal (WSIAT), Decision No.
2157/09, which held that the WSIA’s provisions pertaining to
mental health injuries violated workers’ equality rights guaranteed
by the Canadian Charter of Rights and Freedoms. The WSIAT
held that those provisions were unconstitutional because the
WSIA was significantly more generous in providing entitlement
to benefits for physical injuries than for mental injuries. Despite
this decision, the WSIB has continued to adjudicate WSIB claims
for mental stress on the basis of these unconstitutional provisions.
This led to the Ontario legislature, through Bill 127, to amend the
WSIA to broaden WSIB benefit entitlements for mental stress to
bring mental health-related entitlements more in line with those
for physical injuries.
When the WSIA amendments come into force on Jan. 1, 2018,
workers will maintain their entitlement to benefits for traumat-ic
mental stress, which is limited to mental stress arising from an
acute reaction to a single sudden or unexpected event. However,
entitlement to WSIB benefits for chronic mental stress will be
What, exactly, will constitute work-related chronic mental
stress for entitlement purposes? The WSIB has created a Draft
Policy on work-related chronic mental stress, which defines chron-ic
mental stress as a condition caused by a substantial work-related
28 ❚ OCTOBER 2017 ❚ HR PROFESSIONAL