As of January 1, 2018, important policy changes were implemented to workers’ compensation in Ontario which provided for entitlements relating to claims for workplace harassment, including sexual harassment. As a result, employees with workers’ compensation coverage can pursue benefits arising from mental stress that is caused by workplace harassment. At the same time, employees who have access to these benefits cannot sue their employer (or executives of the employer) for the same injuries suffered in the course of employment. This has been described as the “historic trade off” whereby employees get benefits for workplace injuries under a “no fault” system in exchange for giving up the right to sue employers for negligence that may have caused those injuries. More specifically, section 26 of the Workplace Safety and Insurance Act, 1997 (the “Act”) provides that entitlement to benefits arising from a workplace accident (which now includes workplace harassment) is in lieu of any right of action that an employee may otherwise have against the employer or executives of the employer.
Recently, in Decision 3096/17, the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), considered whether a civil claim for sexual harassment could proceed against the employer and owner of the business given section 21 of the Act. The worker started a civil claim against the employer, owner and supervisor for damages she attributed to sexual harassment and sexual assaults by her supervisor. The supervisor was charged criminally and ultimately pleaded to criminal charges. The decision did not impact the civil claims against the supervisor. She also claimed that the employer and owner were negligent by failing to have appropriate policies and procedures in place with respect to the conduct of employees in the workplace and by failing to provide her with a safe working environment. The employer and owner brought an application to the Tribunal asserting that her claims were statute barred.
The Tribunal confirmed that the employee’s right of action was taken away and that she could not proceed against the employer and owner with her civil claim. The employee argued, unsuccessfully that the allegations of sexual harassment and assault did not fall within the meaning of “accident” as required under the Act, and that her claims ought to proceed. The Tribunal found that the case law clearly established that sexual assault against a worker in the course of employment is considered to be an accident within the meaning of the Act, and therefore, her claims were statute barred. The Tribunal recognized that the bar to actions against employers is a necessary and integral component of workers’ compensation, which has been recognized by the Supreme Court of Canada.
For employers, it is important to recognize that workers’ compensation claims can now include claims related to workplace harassment. Important policy changes were made to chronic mental stress and traumatic mental stress policies which specifically define workplace harassment and set out the conditions that must be satisfied in order for an employee to be entitled to benefits, including appropriate medical diagnosis and a strong causal link between injuries suffered and workplace harassment. An employee who has workers’ compensation benefits is not entitled to pursue a civil claim against the employer in respect of the same allegations of workplace harassment. Employers with workers’ compensation coverage for employees should be vigilant in ensuring that the statutory bar is applied when employees seek to pursue civil claims based on allegations of workplace harassment.