Workplace harassment is no longer an occupational hazard in Canada.
A combination of shifting societal attitudes and legislative advances has helped make sure that employees no longer have to put up with unacceptable behaviour from a boss or colleague. Still, that doesn’t change how overwhelming the experience is when you’re faced with an abusive colleague or boss.
This post explains the protections available to employees and the practical options for addressing workplace harassment.
Workplace harassment trending upwards?
Sadly, workplace harassment seems to be as prevalent as ever — if not more so — in this country.
Several studies have documented the rise in harassment incidents in Canada, including a Statistics Canada report that showed harassment and violence complaints in federally regulated industries were up by more than 25 per cent coming out of the COVID-19 pandemic.
That said, there is an optimistic case to be made for that spike in complaints, since workers may simply feel less tolerant of toxic work environments and freer to exercise their rights.
Employer obligations
In the last couple of decades, a variety of legislative changes have transformed the scope of Ontario employers’ obligations to provide their employees with workplaces safe from discrimination and harassment.
In addition to the province’s Human Rights Code — which protects workers from discrimination on the basis of protected grounds such as age, race, creed, disability, family status, gender identity and sexual orientation — amendments to the Occupational Health and Safety Act now require risk assessments and policies regarding workplace violence and harassment.
If an employee makes a complaint of workplace harassment, the law typically mandates an independent investigation at the employer’s expense.
If you were fired after facing harassment at work or another employee’s behaviour is making it impossible for you to carry out your work, you may even be able to make a claim for wrongful or constructive dismissal.
Long-term disability and WSIB claims
In some cases, harassment escalates far enough that employees can suffer psychological injuries that prevent them from being able to work.
Traditionally, the only realistic option for employees forced off work in these circumstances was to claim benefits through a long-term disability (LTD) insurance plan, if they had one. While LTD policies often cover claims for psychological injuries, coverage decisions will depend on the precise terms of your policy.
However, the landscape changed in 2018, when the Workplace Safety Insurance Board opened a route to benefits for employees who suffer chronic mental stress in the course of their employment. Before then, workplace mental injuries were generally barred, unless the impairment arose as a result of a single traumatic event, such as witnessing a horrifying accident.
Under the updated rules, mental stress injury claimants must meet all three of the following conditions before they are approved by the WSIB:
- A mental health diagnosis is made by a qualified health professional.
- The primary cause of the mental health diagnosis was exposure to a substantial work-related stressor or work-related traumatic event.
- The diagnoses resulted in chronic mental stress or traumatic mental stress.
Whichever route you take, here are a few key steps you can take to boost your chances of a successful claim:
- Document everything: The invisible nature of psychological impairments means that corroboration and claimant credibility will be crucial to the outcome in your case. The more records and reports you can provide about your harassment experience and its effect on your mental health and ability to work, the better.
- Keep your medical team in the loop: Make sure that you are under the regular care of professionals like your family doctor, a psychologist, or a social worker, and that you follow their treatment advice. This is good not only for your mental health, but also for your claim.
- Apply to WSIB early: In my experience, the WSIB is generally slow to make decisions about eligibility for benefits, so get started with the application process as soon as you can. Even if you have an LTD insurance policy, it is still a good idea to apply for WSIB immediately, since many group and private policies contain offset provisions that allow the LTD insurer to reduce your payments if you are eligible for benefits from other sources.
If you have faced or are facing harassment at work, feel free to contact me or another member of the team at Edwards Pollard. If you decide to proceed with a claim, our team of employment lawyers in Ontario can walk you through the process and explain your rights so you can make informed decisions about your next steps.